Interim Decision #2530
MATTES, OP LEUNG
In Section 246 Proceedings
A-50078143
Decided byDistrict Director September 8,1978
(1) Applicant entered the United States as a nonimmigrant visitor for pleasure on Sep*
tember 7,1970, and was authorized to remainMay until
3,1971,but did not depart. In
August1971 he accepted employment as aChinese specialtycook,andalabor
obtained
certification pursuantto section212{a)(14)of the Immigration
andNationality Act based
on experience gained in that employment Subsequently, a sixlh-preference visa petition was approved hisin behalf pursuant
tosection208(a)(6)
the Act.
of OnIS,
October
1973 the instant section 245 application was filed.
(2) Under8 O.F.K.214.1(c),an alien temporary visitor for pleasure as defined in section
10l(a)(lSKB) of the Actmay notacceptanyemployment Applicant
was
inviolation
thus
of United States immigration laws and the total work experience uponwhich the labor
certificationand adjustment applicationwerewas based
obtainedwhileapplicant
was In
the United States unlawfully.
(S) Even though theapplicant isstatutorily eligible, thegrant of an
application for
adjustment of status is a matter of discretion and administrative grace, and the applicant hasthe burden to showthat discretion should
heexerdsedin his behalf.See Matter
ofAral,33 I. &N. Dec. 494;Matter of OrHz-Pneto,111.
N. Dee.
& 317.lit the absence
of unusual or outstandingequities,anapplication for adjustment of status under section
246 of theAct whichis supported by a labor certification predicated upon employment
experience gained whileapplicant was inthe UnitedStatesunlawfully
bedenied
willas
a matter of discretion.
ON BEHALF OF
APPLICANT: AustinT. Fragomen, Esquire
615 Madison Avenue
New York, New York 10022
The applicant, a47-year-old married, native andcitizen of
China, was
admitted to theUnited States as anonimmigrant visitor for
pleasure on
September 7, 1970,with extensions ofstay authorized through May 3,
1971. His wife, a native andcitizen ofChina, resides with their three
alien children in Hong Kong, B.C.C. H e hasremained in theUnited
States since May 3, 1971, without authorization bythis Service and
accepted employment during August 1971 atthe Dynasty Restaurant in
Rego Park, New York, as aChinese food cook. The Dynasty Restaurant
was sold in April 1972 and itsname was changed toMoon Lee
Restaura n t The applicant worked at that restaurant until April 1973, Since that
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Interim Decision #2630
late he has been employed as a Chinese specialty cook by the Chi-Lin
p
ood, Inc.
On December 11,1972, a visa petition for sixth-preference immigrant
lassification as a "Chinese Specialty Cook" was submitted in the appli-
:ant*s behalf by Moon Lee, inc. The petition was supported by a labor
:ertiflcation issued pursuant to the provisions of section 212(a)(14)of the
immigration and Nationality Act. The petitioner stated on the applicaion for alien employment certification (Form MA 7-BOB)that three
rears of experience was the minimum requirement for a worker to
lerform satisfactorily the duties the position offered. The .petition was
ilso supported by a Form MA 7-50Aexecuted by the applicant refiecttig employment as a Chinese cook fromJanuary 1,1961, until December
.963 in the Sun Sang Tea House in Hong Kong,B.C.C,; fromDecember
.970 until April 1972 at the Dynasty Restaurant in Rego Park, New
fork; and fromApril 1972 until August 16,1972,by the Moontee, Inc.,
n Rego Park. As evidence in support of the petition, the petitioner
ubraitted a "Statutory Declaration" dated AugustSO,1972, executed
•y Law, Chi, the owner of the Sun Sang Tea House, stating that the
pplicant had been employed from January 1, 1961, to December SO,
963, at that restaurant.
On December 26,1972, the Officer in Charge in HongKong,B.C.C,
vs& requested to conduct an investigation to verify the applicant's
laimed employment at the Sun Sang Tea House. On April2,1973,the
Jfficer in Charge submitted his report indicating that the applicant had
ever been employed at the Sun Sang Tea House as a Chinese specialty
ook and famished an affidavit dated March15,197S,made by Law, Chi
tating that the statutory declaration executed by him on August 30,
972, in behalf of the applicant was fraudulent. The visa petition wasenied on June 12, 1973, after the petitioner had been afforded an
pportunity to review the record and submit evidence insupport of the
etition or in opposition to the adverse information furnished by the
tfficer in Charge in Hong Kong. An appeal to the Regional Commisioner from the District Director's decision denying the petition was
led on June 27, 1973, alleging that the owner of the Sun Sang Tea
louse was coerced into signing a statement which was untrue; howver, the appeal was subsequently withdrawn bythe petitioner's attorey.
On October 12,1973, a visa petition was filedin the applicant's behalf
y Chin-Lin, Inc., seeking to accord the applicant sixth-preferenceimmirant classification. Such visa petition was supported by a labor eertifiition issued on the basis of a job offer on Form MA 7-50Breflecting the
linimum requirement for the position of Chinese food cook wasat least
tie year of experience, A statement of qualifications on Form MA
-50A was executed by the applicant on May 8,1973.It was submitted
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Interim Decision #2530
in support of the application for the labor certification and filed with the
visa petition and listed only the experience gained by the applicant
while he had been unlawfully in the United States. The visa petition was
approved on January 22, 1976.
An application on Form 1-485 was filed by the applicant on October
12, 1973. He is seeking adjustment of his status to that of a lawful
permanent resident under the provisions of section 245 of the Act.
Section 245 states: "The status of an alien other than an alien crewman
who was inspected and admitted or paroled into the United States may
be adjusted by the Attorney General, in his discretion and under suck
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) the
immigrant visa is immediately available to him at the time his application is approved." (Emphasis supplied).
Even though the applicant has established that he is statutorily
eligible for the benefits sought, be also bears the burden to establish
that discretion should be executed in his behalf.Matter of Aral, 131. &
N. Dec. 494, (1970). The applicable statute does not contemplate that all
aliens who meet the required legal standards will be granted adjustment of status to that of a permanent resident since the grant of an
application for adjustment of status is a matter of discretion and of
administrative grace, not mere eligibility. Matter ofOrtiz-Prieto, 11 L
& N. Dee. 317, (1965).
The applicant was issued a labor certification as required by section
2l2(a)(14) and accorded sixth-preference immigrant classification onthe
basis of his experience as a specialty cook which he acquired In the
United States after admission as a nonimmigrant in a class defined
under 101(a)(15)(B) of the Act as a temporary visitor for pleasure. Such
an alien may not engage in any employment in the United States. 8 CFR .
214.1(c). The applicant has been employed in the United States since
August 1971. Such employment is illegal. Wei v.Robinson, 246 F.2d 739
(G. A. 7,1957), eert. den. 365U.S. 879(1957); Matter
81.
ofS,
& N. Dec.
574 (1960); Matter of Wong, 11 I. & N. Dec. 704 (1966); Matter of
Martmez and Londmo, 131. & N. Dec. 483 (1970); S. Rep. 1137, 82nd
Cong.,2dSess. (1962).
The applicant claimed on May 20,1976, in an affidavit executed before
an immigration examiner in conjunction with the instant application
that he worked part-time as a Chinese cook from January 1961 until
December 1963 at the Sun Sang Tea House in Hong Kong. Such employment was not, however, listed by the petitioner or the applicant
when the labor certification was obtained or when the visa petition was
filed. After carefully considering the entire record in this case, it is
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Interim Decision #2530
determined that the applicant's testimony concerning such employment
is not credible. In any event, the instant application is not predicated
upon such employment.
Section 212(a) of the Immigration and Nationality Act lists the classes
of aliens who shall be ineligible to receive visas and shall be excluded
from admission into the United States. Section 212(a)(14) provides for
the exclusion of aliens "seeking to enter the United States, for the
purpose of performing skilled or unskilled labor, unless the Secretary of
Labor has determined and certified to the Secretary of State and to the
Attorney General that (A) there are not sufficient workers in the United
States who are able, willing, qualified, and available at the time of
application for a visa and admission to the United States and at the place
to which the alien is destined to perform such skilled or unskilled labor,
and (B) the employment of such aliens will not adversely affect the
wages and working conditions of the workers in the United States
similarly employed . . * This section was incorporated into the Act by
the Act of October 3,1965, 79 Stat. 911, to safeguard the livelihood of
workers lawfiilly present in the United States. H. Rep. 746, 89fch Congress, 1st Sess. (1965).
The applicant has been in violation of the Immigration laws of the
United States since August 1971. His disobedience of our laws commenced one year after he arrived in this country as a visitor for pleasure. The total work experience upon which his application is based was
acquired while he was illegally in the United States—in violation of his
status as a visitor for pleasure and thus not permitted to be employed.
In the absence of unusual or outstanding equities, an alien will not as a
matter of administrative discretion be accorded permanent resident
status on the basis of a labor certification issued under section 212(a)(14)
of the Immigration and Nationality Act, where the labor certification is
predicated upon employment while unlawfully in the United States.
IT IS ORDERED that the application for status as a lawful permanent resident be and the same is hereby denied.
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