CHENG

Interim Decision #2623




                                MATTER OF CHENG

                            In Deportation Proceedings
                                      A 20932085
                                        -




                      Decided by Board November 9, 1977
Alien employed after January 1, 1977, not precluded by section 245(c), as amended by 

 Stet. 2703, from receiving adjustment of status where nunc pro tune
  authorization to accept employment granted by Immigratioa and Naturalization Service
  to any alien who is the beneficiary of a visa petition filed before January 10, 1977, and
  who could, under 8 C.F.R. 245.2(a)(2), have properly filed am application for adjustment
  with that petition.
CHARGE:
  Order. Act of 1952—Section 241(a)(2) [8             1251(a)(a)i—Norammiglant visitor--
                           remained longer than permitted
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
 Claorgp T Popcheff, Esquire                             Georue Indelicato
 5023 W. 16th Street                                     Appellate Trial Attorney
 Speedway, Indiana 46224

     Mllhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members




   In a decision dated March 29, 1977, the immigration judge found the
respondent deportable as charged, denied his application for adjustment
of status, and granted him the privilege of voluntary departure. The
respondent has appealed from the immigration judge's decision that he
Was ineligible for adjustment of status under subsection (c) of section
245 of the Immigration and Nationality Act as amended by 

 Stat. 2703, effective January 1, 1977. The record will be
remanded.
   The respondent is a 26-year-old native and citizen of China who last
entered the United States on March 12, 1974, as a nonimmigrant visitor
for pleasure, authorized to remain 'until April 5, 1974. Based upon the
fact that he admitted the allegations in the Order to Show Cause and
conceded deportability, he was correctly found deportable by evidence
which is clear, convincing, and unequivocal. The only issue on appeal
involves the immigration judge's denial of his application for adjustment
of status.
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                                                Interim Decision #2623

   The respondent married a lawful permanent resident on May 5, 1974,
and a visa petition, filed by his spouse in his behalf, was approved on
October 1, 1974. He filed an application for adjustment of status on
January 26, 1977. At his deportation hearing on March 10, 1977, he
admitted being employed without permission by the Service from December, 1975 until January 26, 1977.
   The immigration judge found that the respondent apparently met all
of the statutory requirements for adjustment of status except the provision in subsection (c) of section 245, as amended, by 

Stat. 2703, effective January 1, 1977. This amendment precludes an
alien who continues in or accepts unauthorized employment after
January 1, 1977, and prior to filing an application for adjustment, from
receiving this relief. The respondent, however, contends that his employment was not unauthorized because the Service knew that he was
employed and therefore acquiesced in it. '
   It appears that on July 18, 1977, the Central Office of the Service
issued an instruction to all field offices whereby nunc pro time authorization to accept employment is to be granted to any alien who is the
beneficiary of a visa petition filed before January LO, 1977, and who
could, under 8 C.F.R. 245.2(a)(2), have properly filed an application for
adjustment with that visa petition. Inasmuch as the respondent is the
beneficiary of a second-preference petition filed by his wife on May 21),
1974, it appears that the instruction of July 18, 1977, would have given
nunc pro tune authorization for the respondent's employment. The respondent, therefore, would not be precluded by section 245(c) from
receiving adjustment of status.
  Upon a review of the record, we note a discrepancy regarding the
respondent's place of birth. It appears that the immigration judge
corrected the respondent's Form 1-485 and Form SS-5 to read China as
the respondent's place of birth (Tr. p. 9). Nevertheless, several other
places in the record show Hong Kong as his place of birth. We will
remand the record in order to permit the respondent to clarify his actual
place of birth. The immigration judge shall then make a determination
as to whether the respondent is both eligible for and deserving of the
discretionary relief of adjustment of status.
   ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion and the entry
of a new decision.
   FURTHER ORDER: Should a decision on the application for section
245 relief be adverse to the respondent, an appropriate order shall be
entered and the record shall be certified to this Board for review.




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