LAM

.i.merun IJCCIWA.PLI yr Z.VL.0




                                 MATTER OF LAM

                           In Deportation Proceedings

                                     A-21068985

                      Decided by Board January 6, 1978
The fact that a labor certification depends upon qualifying experience gained through
  unauthorized employment in the United States would not in itself justify refusal to
  grant adjustment of status in the exercise of discretion, where the employment has been
  determined to be of potential benefit to the United States because of a shortage of
  United States workers. Matter of Leung, Interim Decision 2530 (D.D. 1976) and Matter
  of Yarden, Interim Decision 2513 (R. C. 1976) are disapproved.

CHARGE:
   Order: Act of 1952—Section 241(a)(2), I. & N. Act, [8 U.S.C. 1254*(2)1—
                       Nonimmigrant visitor—remained longer than permitted
ON BEHALF OF RESPONDENT: Winston W. Tsai, Esquire
                        Suite 1022
                         1028 Connecticut Avenue
                                   Wabliingtva, D.C. 20030

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members


   This is an appeal from the immigration judge's denial of the relief of
adjustment of status in a decision entered on February 3, 1977, in which
the immigration judge granted to the respondent the privilege of voluntary departure. The appeal will be sustained.
   The record relates to a married male alien, 40 years of age, who is a
native and citizen of China. He was admitted to the United States on
February 6, 1978, as a nonimmigrant visitor. He was originally found
deportable in an earlier decision by the immigration judge on January
12, 1976. The finding of deportability rested on the respondent's admissions. The respondent did not appeal from that decision. He thereafter
obtained reopening of the proceedings in order to apply for adjustment
of status. This appeal is brought from the immigration judge's subs equent denial of that relief.
   The respondent is a specialty cook of Chinese style food. He has been
employed as a Chinese cook by the China Shoppe Restaurant in Maryland from May 1976 to the present time. He was previously employed by
tie Red Blazer Restaurant from January 1976 to April 1976 in New

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York, by the Horse River Restaurant in Maryland from May 1974 to
December 1975, and by the Oriental Garden Restaurant in Virginia
from April 1973 to April 1974. The China Shoppe ReStaurant filed a
labor certification application on behalf of the respondent, which was
approved on April 15, 1976. A sixty-preference petition filed by the
China Shoppe Restaurant on behalf of the respondent was approved on
June 30, 1976.
   On the labor certification application the China Shoppe Restaurant
specified that two years experience was required for the position offered. All of the qualifying experience shown by the respondent' in
support of the labor certification was gained in the United States as
listed above. At his deportation hearing the respondent testified that his
sole experience as a cook prior to coming to the United States consisted
of part-time work of about ten hours a week for several months during
1970 (Tr. p. 6). Inasmuch as that experience did not amount to the two
years of experience required by the United States employer, the respondent's eligibility for a labor certification must necessarily depend
upon the experience he gained while in the United States.
   Because the respondent's qualifying employment experience was
gained while he was here as a nonimmigrant visitor and later ai an
overstay, the immigration judge declined to exercise his discretion
favorably to the respondent and denied him adjustment of status. The
issue posed is whether the fact that qualifying experience for a labor
certification was gained by employ-ment which was not authorized under
the immigration laws constitutes a factor adverse to the exercise of
discretion, when considering an application for adjUstment of status.
   We have previously considered the general issue in the case of /Matter
of Arai, 

 (BIA. 1970). Arai, like the present respondent, sought adjustment of status on the basis of an approved labor
certification as a specialty cook. In that ease, as in this, no finding was
made by the immigration judge that the respondent was other than a
bona fide visitor when he first arrived in the United States. The immigration judge, however, considered Arai's taking of employment as an
adverse factor. We reversed the immigration judge and held that the
case presented no adverse factors affecting the respondent's application. We characterized the employment as a potential benefit to the
United States inasmuch as there was a shortage of United States
workers in his field of employment. The Labor Department, by certifying the application, had so determined.
  In the case before us the immigration judge, in declining to exercise
discretion favorably, focused on the fact that the unauthorized employ-ment was crucial to eligibility for the labor certification, rather than on
the fact that the employment was unauthorized. While the focus is thus
somewhat different from Arafs case, the immigration judge's considera-

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 tion of the employment as an adverse factor is nonetheless inconsistent
 with the decision in Matter of Arai, supra. Inasmuch as the recitation of
 facts in Arai did not specify to the contrary, we must assume that Arai's
 work experience in the United States was crucial to his labor certification, as was the respondent's. The immigration judge's decision below
 that approval of a labor certification should be disregarded in the exercise of discretion when the experience was gained in the United States
 by means of unauthorized employment cannot, therefore, be reconciled
 with the decision in Matter of Arai, supra.
    When a labor certification has been granted concerning employment,
it has been determined that the employment is not detrimental to the
United States labor market. An important concern of our immigration
laws is the protection of our domestic economy. Taking unauthorized
employment in violation of law may be an adverse discretionary factor.
However, this is offset when unauthorized employment is not detrimental, and is in fact of potential benefit to our country, in view of the
shortage of United States workers. In this case not only has a labor
certification been granted for the employment, but a sixth-preference
petition as well.
    We are aware that the Service has previously addressed the same
issue in two cases and has held that discretionary relief should be denied
to an alien in the above circumstances in the absence of unusual or
outstanding equities. Matter of Leung, Interim Decision 2530 (D.D.
 1976). 1 Matter of Yarden, Interim Decision 2513 (R. C. 1976) (dicta). The
facts in Matter of Leung, supra, were very similar to those in this case.
                   ,


In that case as in this, the respondent was issued a labor certification
and accorded sixth-preference status on the basis of experience as a
specialty cook, which experience had been acquired while in the United
States, after admission as a nonimmigrant visitor for pleasure_
   Neither Service decision, however, makes reference to the decision of
Matter of Arai, supra. While the immigration judge's decision below
does cite Arai for its enunciation of the general standard for the exercise
of discretion, it does not mention that the result reached is directly
contrary to the result reached in Arai. The decision below and those of
Leung and Yarden did not attempt to distinguish Arai, and in our view
are inconsistent with Anti. Accordingly, we disapprove of the Service's
decisions in Matter of Yarden, supra, and Matter of Leung, supra. 2

    ' "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
limited States." Matter of Leung, supra.
      We note that the issue may be mooted to some extent by the Immigration and
Nationality Act. Amendments of October 20, 1076, which took effect on January 1, 1977,


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  The respondent has established visa availability and appears to be
otherwise qualified for the requested relief.
  ORDER: The appeal is sustained and the respondent is granted
adjustment of status subject to necessary processing by the Service.
  FURTHER ORDER: The outstanding order of deportation is withdrawn.




(

 Stat. 2703). Section 245 of the Act as amended now , provides'
                                                                              rovides that
the relief of adjustment of status is not available to:
     . . . an alien (other than an immediate relative as defined in sections 201(b)) who
     hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status. Section 245(c)(2).

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