TONG

                                                           Interim Decision #2668




                                MATTER OF TONG
                           In Deportation Proceedings
                                      A-20938473

                      Decided by Board August 15, 1978
(1) The word "employment" is a common one, generally used with relation to the most
  common pursuits, and therefore ought to be received as understood in common parlance
  and includes the act of being employed for one's self.
(2) Unauthorized self-employment as a used car dealer is "unauthorized employment"
  within the purview of section 245(c) of the Immigration and Nationality Act (8 U.S.C.
  1255(c)) and precluded adjustment of status.
(3)8 C.F.R. 214-2(f)(6) provides that a nonimmigrant student is in violation of his status
  whether he engaged in off-campus employment in the United States for an employer or
  independently, unless his application to do so has first been approved by the Service.
CHARGE:
  Order: Act of 1952—Section 241(a)(9) (8 U.S.C. 1251(a)(9))—Noninuaigrant—Failed to
                          comply with conditions of status (Order to Show Cause-charge
                          withdrawn)
  Lodged: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2))—Nonimmigrant
                         student—remained longer than permitted
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
 Mary L. Sfasciotti, Esquire                           Oliver H. Claypooldr.
 Sfasciotti, Stern & Sfasciotti                        Trial Attorney
 5825 Sixth Avenue
 Kenosha, Wisconsin 53140
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members


   This case presents an appeal from a decision of the immigration judge
on August 8, 1977, finding the respondent deportable on the lodged
charge and granting him the privilege of voluntary departure, with an
alternate order of deportation to Hong Kong. The immigration judge
denied the respondent's application for adjustment of status, pursuant
to the provisions of section 245 of the Immigration and Nationality Act,
as amended. The appeal will be dismissed.
   the respondent is an unmarried native and citizen of Hong Kong who
has resided in the United States since August 1971_ He is the beneficiary of a visa petition filed by his lawful permanent resident mother

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and approved by the District Director in April 1975. The respondent
was initially authorized to remain here as a student until June 15, 1976.
He was granted the privilege of departing voluntarily by October 26,
1976, without the issuance of an Order to Show Cause, but failed to
leave this country. Deportability has been established by clear, convincing, and unequivocal evidence.
   The immigration judge noted the respondent's testimony that he has
been self-employed since he opened a used car dealership known as
Eddie's Auto.Sales on May 1, 1976 (Tr. p. 8), without permission from
the Service (Tr. p. 13). The immigration judge found that the respondent, therefore, is precluded from qualifying for adjustment of status
under the provisions of section 245(c) of the Act. Counsel contends on
appeal that the respondent did not commence his business until one year
after graduation from college in 1975 and was no longer a student in May
1976. Counsel also contends that the immigration judge failed to address
the issue as to whether self-employment constitutes unauthorized employment, as that term appears in section 245, and thereby precludes
adjustment of status to aliens who have engaged in unauthorized employment. The Service contends that the term "employment," in section
245 of the Act, includes within its meaning "self-employment" (p. 8).
   Section 245(c) of the Act, as amended by P. L. 94-571, 90 Stat, 2703,
effective January 1, 1977, provides, in pertinent part, "The provisions of
this section shall not be applicable to an alien . . . who hereafter con
tinues in or accepts unauthorized employment prior to filing an application for adjustment of status. . . ." Counsel in her first brief contended
that the respondent's "status approximates an investor and not an
`employee' as that term is commonly used." It is the official position of
the Service, however, that it considers unauthorized self-employment
by a beneficiary of an approved relative visa petition as "unauthorized
employment" within the purview of section 245(c). We are in agreement
with this position.' Cf. Matter of eh,en g , Interim Decision 2623 (BIA
1977). In the latter case, it was noted that on July 18, 1977, the Central
Office of the Service issued an instruction to all field offices whereby
nunc pro tune authorization to accept employment was to be granted to
any alien who was 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
an application for adjustment with that visa petition. In the instant
ease, the respondent cannot possibly benefit from the Service instrac-

    8 C.F.R. 214.2(f)(6) provides, in pertinent part, that a nonimmigrant student is in
violation of his status whether he engages in off-campus employment in the United States
for an employer or independently (i.e. self-employed), unless his application to do so has
first Been appriropyl by tha Serzieo_ (Emphasis supplied.) The word "independently" "as
 added effective September 2, 1975 (

, 8/1175).

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                                                Interim- Decision watib
tion because he is a native of Hong Kong and a visa was never immediately available to him before January 10, 1977.
   The word "employment" is a common one, generally used with relation to the most common pursuits, and therefore ought to be received as
understood in common parlance. The word "employment" is also defined
as meaning the act of being employed for one's self (30 C.J.S. 682). It
should be self-evident, in view of all of the foregoing, that any and all
types of employment taken without proper authority constitute unauthorized employment.
   A nonimmigrant alien has the obligation either to depart at the
expiration of his authorized period of stay, or to obtain a proper extension of that stay. In order to establish an alien's deportability as an
"overstay," the Service need only show that the alien was admitted as a
nonimmigrant ". . . for a temporary period, that the period has elapsed,
and that the nonimmigrant has not departed." See Milande v. INS, 

 (7 Cir. 1973); Matter of Teberen, Interim Decision 2498 (BIA
1976). It should be clear that the respondent, no longer a student, is an
"overstay" in this country and has remained in the United States illegally.
   Upon review of the recur d, we find that the decision of the immigration judge was correct in the circumstances of this case. He granted the
respondent a period of two months for voluntary departure. We have
held that in those eases in which a period exceeding 30"days has been
granted, the respondent will be given 30 days from the date of our
decision in which to depart voluntarily. See Matter of Chowliaris,
Interim Decision 2572 (BIA 1977). The District Director, however, is
authorized to extend that period in his discretion. See 8 C.F.R. 244.2.
Accordingly, the appeal will be dismissed.
  ORDER: The appeal is dismissed.
  FURTHER ORDER: The respondent is permitted to depart from
the United States voluntarily 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.




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