PATEL

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                        -       MATTER OF PATEL

                             In Section 246 Proceedings
                                      A-20289698

                      Decided by Board January 25, 1978
(1) Under the provisions of 20 C.F.R. 656.30(d), effective February 18, 1977, a labor
  certification issued by the Labor Department is subject to invalidation by the Immigration and Naturalization Service or the Department of State only upon a finding of fraud
  or willful misrepresentation of a material fact involving the labor certification application.
(2) Matter of Hernandez-Uriarte, 

 (BIA 1969) interpreting 29 C.F.R.
  60.5(g), the regulation superseded by 20 C.F.R. 656.30(d), is superseded.
(3) Since under the new controlling regulation a finding of fraud or willfulness is required
  to invalidate a labor certification duly issued by the Labor Department, and the
  immigration judge specifically refrained from making such a finding in view of our
  interpretation of the previously controlling regulation, the record is remanded for a new
  evidentiary hearing to allow the respondent and the Service an opportunity to explore
  the issue.
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
  Peter D. Williamson, Esquire                           Daniel L. Kahn
   1320 Americana Building                               Trial Attorney
   Houston, Texas 77002
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members



   This is an appeal from a decision of an immigration judge dated April
13, 1977, ordering the rescission of the adjustment of status granted to
the respondent. The appeal will be sustained and the record will be
remanded for further proceedings.
   The record relates to a married female alien, native and citizen of
India, whose status was adjusted to that of an alien admitted for
permanent residence on May 7, 1975. Her status was adjusted primarily
on the basis of a labor certification approved on January 22, 1974. The
Service concluded that this labor certification was invalid- These rescission proceedings were instituted.
   The immigration judge found that the respondent's labor certification
was invalid because it was obtained on the basis of materially incorrect
representations to the Labor Department both as to the background of
employment, and the potential employment in the United States. Although fraud was alleged by the Service in the Notice of Intention to

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Rescind, the immigration judge specifically refrained from making a
determination on the alleged fraud. The immigration judge found that
the material misrepresentations found by him to have been made were
sufficient to invalidate the labor certification under 29 C.F.R. 60.5(g).
   The immigration judge's finding as to the requirements to invalidate a
labor certification under 29 C.F.R. 60.5(g) was correct under our interpretation of that regulation. See Matter of Hernandez-Uria.rte, 

 (BIA 190); Matter of Gonzalez-Becerra, 

 (BIA 1969).' However, this case is not governed by that regulation.
   Effective February 131,, 1977, 29 C.P.R. 60.5(g) was superseded by 20
C.F.R. 656.30(d). See 

 (January 18, 1977). This new controlling regulation reads:
    After issuance labor certifications are subject to invalidation by the INS or by a
  Consul of the Department of State upon a determination, made in accordance with those
  agencies' procedures or by a Court, of fraud or willful misrepresentation of a material
  fact involving the labor certification application. If evidence of such fraud or willful
  misrepresentation becomes known to a Regional Administrator, Employment and
  Training Administration or to the Administrator, the Regional Administrator or Administrator, as appropriate, shall notify in writing the INS or State Department, as
  appropriate.
  In view of the fact that a finding of fraud or of willful misrepresentations of a material fa ct involving the labor certification application
is required under the new regulation to invalidate a labor certification,
findings not made by the immigration judge because they were unnecessary under our interpretation of the previously controlling regulation,
the record will be remanded for further proceedings before the immigration judge. A new evidentiary hearing should be conducted to allow
the respondent and the Service to explore the issue.
  We note that the Service may deem it appropriate to amend the
Notice of Intention to Rescind in light of our decision in Matter _of
Darlquak, Interim Decision 2578 (BIA 1977), rendered subsequent to
the institution- of these proceedings.
  ORDER: The appeal is sustained and the record is remanded for
further proceedings.




    However, our interpretation of 29 C.F.R. 60.5(g) was disapproved by the United
States Court of Appeals for the District of Columbia Circuit in Castaneda-Gonzalez v.
INS, 

 (D. C. Cir. 1977).

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