Interim Decision #2590
MATTER O1 DACANA Y
In Deportation Proceedings
A-20972362
A-20972365
Decided by Board June 3, 1977
(1) Respondents were authorized to accept employment at St. John's Hospital in Detroit.
Subsequently, and in violation of their authorized employment, they accepted employment at another hospital prior to the approval of visa petitions submitted by the second
hospital in their behalf. The Service approved those petitions January 24, 1975, and
authorized respondents to remain until January 23, 1976.
(2) Deportation proceedings were instituted under section 241(a)(9) of the Immigration
and Nationality Act alleging respondents had violated their nonimmigrant status by
accepting employment at the second hospital before approval of their visa petitions.
(a) A visa petition filed on Form I-129B on behalf of an alien already in the United States
in a nonimmigrant classification defined in section 101(a)(15)(H) of the Act may be
adjudicated only as an application for extension of stay either to continue the same
employment or training previously authorized or to undertake different employment or
training. The approval by the Service of the Forms I-129B filed by the second hospital
on January 24, 1975, operated to authorize an extension of the stay of respondents and
inferentially affirm the continuing legality of their nonimmigrant status. For that reason
the orders to show cause should not have been issued, and the proceedings will be
terminated. •
CHARGE:
Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9))—Noninunigrants--failed to
comply with conditions of status
ON BEHALF OF RESPONDENTS: Ernest Sosnick, Esquire
Popkirk, Shamir & Greenberg, Inc.
5670 Wilshire Boulevard
Suite LSOO
Lus Arageles, Califuruia 90036
Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members
In a decision dated March 19, 1S75, an immigration judge found the
respondents, husband and wife, deportable under section 241(a)(9) of
the Immigration and Nationality Act, for failure to comply with the
conditions of their status, and granted them the privilege of voluntary
d eparture by May 17, 1975, in lieu of deportation to the Republic of the
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Philippines. The husband alone has appealed from that decision in
submitting his Notice of Appeal (Form I— 290A), dated March 26, 1975,
through previous counsel. Inasmuch as the Service and new counsel
treat the appeal as though the wife had appealed also, we will take
jurisdiction of her case on certification in accordance with 8 C.F.R.
3.1(c).
The respondents, natives and citizens of the Republic of the Philippines, were admitted to the United States on July 10, 1972, and August
5, 1972, respectively. Under Section 1_01(a)(15)(H)(i), they were authorized employment at St. John's Hospital, Detroit, Michigan, until
May 17, 1975, and May 4, 1975, respectively.
In violation of their authorized employment, the respondents accepted employment at the David Brotman Memorial Hospital in Culver
City, California, on November 18, 1974, and December 2, 1974, respectively. They commenced such employment prior to the approval of visa
petitions submitted by the David Brotinan Memorial Hospital on their
behalf. The visa petitions were approved on January 24, 1975, for their
new employment and they were authorized to remain until January 23,
1976 (counsel's brief p. 1).
At the hearing the respondents admitted the allegations contained in
the Order to Show Cause, however, they denied deportability (Tr. p. 3).
Section 101(a)(15)(17)(i), pertains to an alien having a residence in a
foreign country, which he has no intention of abandoning, who is of
distinguished merit and ability and who is coming temporarily to the
United States to perform temporary services of an exceptional nature
requiring such merit and ability.
The employment of nonimmigrants, including temporary workers, is
also governed by regulations. The pertinent portion of 8 C.F.R. 214.1(c)
states:
A nonimmigrant who is permitted to engage its employment may engage only in such
employment as has been authorized. Any unauthorized employment by a nonimmigrant
conAtitutps a failure to maintain status within the meaning of section 241(a)(9) of the
Act.
Additionally, 8 C.F.R. 214.2(h)(1) provides:
If an alien in the United States desires to perform temporary services for another
petitioner, a new petition on Form 1-129B must be submitted, and if the petition is
approved, an extension of stay may be granted. .
The respondents were authorized employment at St. John's Hospital,
Detroit, Michigan. Initially they were not authorized employment at
David Brotman Memorial Hospital in Culver City, California; authorization was not obtained until some 10 -weeks after employment commenced.
The Service, however, in its motion for termination, dated May 19,
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1977, requests that these deportation proceedings be terminated inasmuch as they were improvidently begun.
It is the Service position that a visa petition filed on Form 1-12913 in
behalf of an alien or aliens already in the United States in the noninunigrant classification defined in Section 101(a)(15)(H), may be adjudicated
only as an application for extension of stay either to continue the same
employment or training or to undertake employment or training different from that previously authoriied. The approval of Forms 1-1293 in
these cases on January 24, 1975, had the effect of extending the stay of
the respondents and of inferentially affirming the continuing legality of
their noninunigrant status. The Service contends the Orders to Show
Cause should not have been issued.
On the basis of the foregoing we will grant the Service Motion for
Termination. Matter of Vizcarra-Delgadillo, 13 I. & N. Dec. 51 (BIA
1968). Accordingly, the proceedings will be terminated.
ORDER: The deportation proceedings against the respondents are
terminated.
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