Interim Decision #2578
MATTER OF DANQUAH
In Deportation Proceedings
A-20719285
A-20719286
Decided by BoarcZ April 19, 1977
(1)Respondents who are husband and wife applied in reopened deportation proceedings
for adjustment of status under section 245 of the Immigration and Nationality Act based
on issuance of a labor certification to the female respondent as an African Specialty
Cook. The application of the husband is dependent on that of his wife. The immigration
judge denied the applications on the ground that the labor certification issued to the
female respondent was no longer valid since she had left the employment specified in the
labor certification.
(2)Female respondent had received two labor- certification° as an African Specialty Cook_
From October 1975 to March 26, 1976, she was employed in the capacity specified in her
labor certification at the second establishment She was forced to cease her employment
March 26, 1976, temporarily for emergency surgery and hospitalization. She attempted
to return to her employment May 5, 1970, but did not do so because her employer was
only operating on a part-time basis, would not pay her the agreed-upon wage, and had
not remodeled the kitchen area as promised.
(3)An application for adjustment of status filed under section 245 of the Act is assimilated
to an application for an immigrant visa made to consular officer abroad. An applicant for
a visa overseas, whose offer of employment on which the labor certification was based
was withdrawn, could no longer base his visa application on that labor certification.
Similarly, an applicant for adjustment of status, who is no longer employed in the
position for which the labor certification was granted, la not eligible for an immigrant
visa based on that labor certification. The immigration judge properly denied respondents' applications.
(4) Metter of Stevens, 12 I. & N. Dec, 494 (BIA 1968) reaffirmed.
CHARGE:
Order: Act of 1952—.Section 241(a)(2) 18 1251(a)(2))—Nonimmigrant visitor—
remained longer (both respondents)
ON BEHALF OF RESPONDENTS: Joseph F. O'Neil, Esquire
116 Lincoln Street
Boston, Massachusetts 02111
BY: MilhoIlan, Chairman; Wilson, Maniatis, and Appleman, Board Members
The respondents,, husband and wife, were found deportable under
section 241(a)(2) of the Immigration and Nationality Act, as temporary
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Interim Decision #2578
visitors who had overstayed the terms allowed in their visas, on June
26, 1975, and were granted the privilege of voluntary departure. On
November 4, 1975, we dismissed an appeal from that decision. On
August 9, 1976, the District Director denied their application for a stay
of deportation. On September 9, 1976, we ordered the reopening of
proceedings to allow consideration of an application by each of the
respondents for adjustment of status under section 245 of the Act, based
upon a labor certification which had been granted to the female respondent. At the reopened hearing on November 15, 1976, the immigration
judge denied adjustment of status to both respondents on the ground
that the female respondent's labor certification was no longer valid, and
the application of the male respondent depended directly upon the
success of the female's application. The respondents now appeal from
the denial of adjustment of status. The appeal will be dismissed.
The respondents are natives and citizens of Ghana. The female respondent was accorded a labor certification by the Department of Labor
in October, 1975 as an African Specialty Cook. On March 3, 1976, she
obtained a second labor certification for another establishment, also as
an African Specialty Cook. The respondent was employed in the capacily specified on her labor certification al.. the second establishment from
December 1975 until March 26, 1976, when she was forced to cease
employment temporarily upon being hospitalized on an emergency basis
for surgery. The respondent. was discharged from hospitalization on
May 5, 1976, and immediately sought to resume her employment. However, she testified at the hearing that upon her return, her employer
was only operating on a part-time basis, would not agree to pay her the
agreed-upon wage, and had not effected various renovations of the
kitchen area as promised. The respondent therefore did not return to
work at the restaurant. She also testified at the hearing that she had
accepted no other employment since the termination of her work at the
restaurant, and that she was willing to resume employment in her
former position if that job were again offered to her.
In Matter of Stevens, 12 I. & N. Dee. 694 (BIA 1968), we held that an
applicant for adjustment of status under section 245 of the Act who was
subject to the labor certification requirements of section 212(a)(14) of
the Act, and who was no longer employed by the employer who had
petitioned for the labor certification, was no longer in possession of a
valid labor certification. The facts in the instant case fall directly within
that holding.
Respondent's counsel, however, cites to the line of cases in which we
have held that an alien who has been accorded lawful permanent resident status on the basis of a labor certification secured abroad in good
faith, and who has for various reasons failed to accept or retain the
designated employment after his arrival in the United States, is not
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Interim Decision #2578
subject to deportation for the lack of a valid labor certification. See
Matter of Cardoso, 13 I. & N. Dec. 228 (BIA 1969); Matter of Marcoux,
12 I. & N. Dec. 827 (BIA 1968); Matter of Klein,
12 I. & N. Dec. 819
(BIA 1968). Counsel argues that we should extend the rationale of these
cases to the present facts, and hold that an applicant for adjustment of
status who, for justifiable reasons, has ceased the employment upon
which her labor certification was based is nonetheless eligible for adjustment of status. For the following reasons, we decline to extend the
rationale of these decisions to the facts of this case.
Counsel would have us assimilate the female respondent in this case
to the alien who has been accorded an immigrant visa overseas based
upon a labor certification, and who has traveled to the United States
only to find upon arrival that his offer of employment is no longer open,
or that the employment is justifiably unsatisfactory. The analogy, however, is not well drawn. Counsel misperceives the position of an applicant for adjustment of status. An application for adjustment of status is
assimilated to an application for an immigrant visa made to a consular
officer abroad. Matter of Mirza,
11 I. & N. Dec. 756 (BIA 1966). While
an applicant for adjustment of status is admittedly already present in
the United States at the time of his application for an immigrant visa,
such presence should not be allowed to place the applicant in a better
legal position than one who applies for an immigrant visa overseas. To
do so would reward those who, as in this case, have abused their
nonimmigrant visas, or who have entered this country illegally, at the
expense of those aliens overseas who desire admission but seek such
admission in the legally prescribed manner.
It is well settled that an applicant for admission overseas whose offer
of employment, upon which his labor certification is based, has been
withdrawn prior to the grant of an immigrant visa may no longer base
his application on that labor certification. See Matter of Paco,
12 I. & N.
Dec. 599 (BIA 1968). We decline to place the applicant for adjustment of
status in a better position than one who applies for admission at an
overseas consulate. We shall therefore affirm the validity of Matter of
Stevens, supra, and hold that an applicant for adjustment of status no
longer employed in the position for which his labor certification was
granted is not eligible for an immigrant visa based upon that labor
certification. Accordingly, the appeal of the female respondent will be
dismissed. Since the application of the male respondent is directly
dependent upon the success of the application of his wife, his appeal will
also be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondents are permitted to depart from the United States voluntarily
N.vithin 30 days from the date of this order or any extension beyond that
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time as may be granted by the District Director; and in the event of
failure so to depart, the respondents shall be deported as provided in the
immigration judge's order.
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