i16CE1111 JJtUblUll if G00.1.
MATTER OF WANG
In Deportation Proceedings
A-20549207
Decided by Board May 24, 1978
An alien, who has applied for adjustment of status as a nonpreference immigrant, cannot
establish exemptionfrom the labor certification requirements of section 212(a)(14) of the
Act as an alien who does not intend to enter the labor market, when her sole source of
income is $000 a month which her husband in Hong Kong sends to her under a Hong
Kong legal separation agreement.
CHARGE:
Order: Act of 1952--Section 241(a)(2) [8 U.S.C. 1201(a)(2))—Nonimmigrant visitor-
• remained longer
ON BEHALF OF RESPONDENT: John F. Sheffield, Esquire
442 Pacific Mutual Building
523 West Sixth Street
Los Angeles, California 90014
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
In a decision dated June 7, 1976, an immigration judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Rationality Act, 8 U.S.C. 1251(a)(2), as a. nonimmigrant visitor for
pleasure who remained longer than authorized, ordered her deported,
but granted her the privilege of voluntary departure in lieu of deportation. He also denied the respondent's application for adjustment of
status under section 245 of the Act, 8 U.S.C. 1255. The respondent has
appealed from that denial. The appeal will be dismissed.
• The respondent, a 38-year-old native and citizen of China, last entered the United States, with her 14 year-old daughter, as a nonimmigrant visitor for pleasure on August 14, 1973. She did not depart as
required. At the deportation hearing, the respondent admitted that the
allegations of fact in the Order to Show Cause were true and conceded
that she was deportable as charged. We, therefore, agree with the
immigration judge that deportability as charged has been established by
clear, convincing, and unequivocal evidence. The only issue remaining on
appeal is the immigration judge's denial of the respondent's application to
adjust her status to that of a lawful permanent resident.
528
interim Decision eztfoi.
,
The respondent first applied for adjustment of status with the District
Director on May 29, 1974. At that time, she applied for a nonpreference
immigrant visa. She claimed that she was exempt from the labor certification requirement of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14),
because she did not intend to enter the labor market. She stated that
her living expenses were provided by her husband who sent her money
each month from Hong Kong for her support. The District Director
denied her application, finding that she did not have sufficient income to
support herself and her daughter without the income derived from her
husband's employment in Hong Kong, and that if he exempted her on
the basis of income supplied from her husband's employment, he would
also be granting her husband an exemption from the labor certification
requirement since he would then be eligible to enter the United States
as a second-preference spouse of a lawful permanent resident, exempt
from the labor crtification requirements. The District Director denied
the application in the exercise of discretion on the basis that the respondent's application wa part of an attempt to circumvent the requirement
of section 212(a)(14) of the Act.
The District Director certified the record and his decision to the
Regional Commissioner of the Immigration and Naturalization Service,
Southwest Region, for review. The Regional Commissioner in his decision, Matter of Wang, Interim Decision 2404 (R.C. 1975), found that
there was nothing in the record to contradict the District Director's
finding that the respondent was attempting to evade the labor certification requirement of the Act. He agreed that the respondent-was dependent on income which her husband earned, and, stated that, since, there
was no indication that her marriage was not viable, it followed that her
husband would probably come to the United States to join her and their
daughter, as soon as the respondent became a lawful permanent resident. He, therefore, agreed that her application for adjustment of
status should be denied.
The respondent reapplied for adjustment of status before the immigration judge in deportation proceedings on April 1, 1976. She again
claimed to be a nonpreference immigrant exempt from the labor certification requirements of section 212(a)(14) of the Act. She again stated
that her husband provided her support and that she did not intend to
work in this country. By the time of the deportation hearing, the
respondent had procured a legal separation from her husband in Hong
Kong under which he was required to pay her support in the amount of
$600 a month.
The respondent testified at the hearing that she now intended to
remain in the United States permanently since she did not see any
possibility of a reconciliation with her husband in Hong Kong. Despite
this testimony, the immigration judge also found that the respondent
529
Interim Decision #2651
and her husband were attempting to evade the labor certification requirements of section 212(a)(14) of the Act. The immigration judge
stated that he did not find credible the respondent's statement that she
had no intention of seeing her husband again. He found that, since the
respondent had admitted that she was dependent on her husband for
support and because there is no guarantee that he will continue sending
support payments, the respondent was statutorily ineligible for adjustment• of status under section 212(a)(14) of the Act.
The immigration judge also found that the respondent's application
fur adjustment of status should be denied in the exercise of discretion
because he believed that she had entered the United States in 1972 with
a preconceived intent to remain permanently and there were no outstanding favorable equities to outweigh this adverse factor. See Matter
of Blas, Interim Decision 2485 (BIA 1974; A.G. 1976); Matter of Arai , 13
I. & N. Dec. 494 (BIA 1970).
On appeal, the respondent claims that the immigration judge incorrectly found both' that she was ineligible for adjustment of status, and
that the requested relief should be denied in the exercise of discretion.
The respondent also argues that the immigration judge should not have
considered her husband's finantial 1.vurth in these proceedings since he is
not a party in the present deportation proceedings. She stated that
although the evidence submitted should be sufficient to establish that
her husband is a wealthy man, no attempt was made to show his entire
financial worth, since she was merely attempting to establish her husband's ability to continue to support her. The respondent also argues
that her husband's future plans and intentions are irrelevant to the
present proceedings. She claims that whether once she is granted adjustment of status, she then applies for preference status for her husband, should not be an issue since the Act provides for just such an
application.
Although the respondent does state that she has income in the amount
of approximately $100 a month in interest from money she has invested
in this country, the bulk of her income comes from her husband in Hong
Kong. It is clear that if she were not receiving the money every month
from her husband, she would not be able to pay her living expenses
without taking some kind of job. The $600 a month which she receives
from her husband is the amount specified in a legal separation agreement which she obtained from her husband after the Regional Commissioner had affirmed the District Director's denial of her application for
adjustment of status. However, there is no assurance either that this
separation agreement will stay in effect for any specified period of time,
or that her husband will continue to abide by the terms of the agreement. If her husband did refuse to continue to pay her support, it would
be quite difficult for her to enforce the agreement in Hong Kong while
530
Interim Decision #2651
residing in this country. Since it is clear that this support from her
husband is essential to the respondent's ability to live in this country
without working, if she were to stop receiving this support she would be
forced to enter the labor market. We, therefore, find that the respondent has not established that she is exempt from the labor certification
requirements of section 212(a)(14) of the Act on the basis of income from
a source in another country, when that income - may stop at any time.
Moreover, an unsecured assurance of support by a nonresident relative
does not even measure up to the normal requirement for satisfying this
Government that an alien is not likely at any time to become a public
charge. Foreign Affairs Manual, Part III, Vol. 9, 22 C.F.R. 42.91(a)(15),
Note 1.2(c). It takes the combination of respondent's husband's promised
remittances and her employability to overcome this ground.
Since the respondent is applying for adjustment of status as a nonpreference immigrant and she has not shown that she is exempt from
the labor certification requirements of section 212(a)(14) of the Act, she
.
is statutorily ineligible for relief under section 245 of the Act. Accordingly, her appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is granted the privilege of
voluntary departure without expense to the Government within 30 days
from the date of this order, or any extension beyond that time as may be
granted by the District Director; and in the event of failure so to depart,
the respondent shall be deported as provided in the immigration judge's
order.
531
