CHHEAV

                                                             Interim Decision #2676




                               MATTER OF CHHEAV

                            In Deportation Proceedings
                                       A-22417010
                       Decided by Board October .18, 1978
(1) An alien seeking adjustment of status as a nonprincipal alien under the provisions of
  the Act of October 28, 1977, 

 Stat. 1223, relating to spouses and
  children of Indochinese refugees need not have an approved visa petition as a prerequisite for that relief.
(2) Adjustment of status will be granted under the provisions of 

to one
  claiming eligibility as the spouse of an Indochinese refugee eligible for relief under that
  Act as' a principal only upon a showing that the marriage is one recognizable for
  immigration purposes.
CHARGES:
  Order Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant visitor—
                       remained longer than permitted
         Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)1—Failed to comply with
                            conditions of nonimmigrant status under which admitted

ON BEHALF OF RESPONDENT:                                04 BEHALF OF SERVICE:
  Robert A. Shivers, Esquire                              Richard M. C.AAl2s
  833 Bandera Road, Suite 201                             Trial Attorney
  San Antonio, Texas 78225

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


  The respondent moves for the reopening of these proceedings so as to
apply for adjustment of status under the provisions of Title I of 

 Stat. 1223. The motion will be granted and the record
will be remanded for further proceedings before an immigration judge.
  The respondent is a native and citizen of Mexico. She was admitted to
the United States as a nonimmigrant visitor for pleasure on March 10,
1975. On October 26, 1976, she was found deportable as a nonimmigrant
who remained beyond her authorized period of stay and who failed to
comply with the conditions of her status. On January 13, 1977, we
affirmed the immigration judge's decision.
   On November 23, 1977, the respondent submitted the present motion
to reopen. She claims eligibility for adjustment of status under the
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provisions of the Act of October 28, 1977, on the basis of her marriage on
July 30, 1976, to a person claimed to be a Cambodian refugee.
  The trial attorney who responded to the respondent's motion opposed
the motion on the ground that the respondent was ineligible for adjustment of status because a visa petition has not been filed and approved on
her behalf. The trial attorney did nut challenge the bona fides of marriage nor the fact that the respondent's spouse may be an alien who may
adjust his status as a principal under the provisions of the Act of
October 2S, 1977_
   Our reading of 

raised in our minds the possibility
that an approved visa petition may not be necessarily required in cases
such as the present. Therefore, on April 28, 1978, we addressed an
inquiry to the chief trial attorney in this regard. Pending our inquiry,
the Service published on May 2, 1978 , 

, final regulations to
implement Title I of the Act of October 28, 1977. The regulations again
were silent on the issue of the need for an approved visa petition on
behalf of nonprincipal aliens.
   On September 1, 1978, we received a response to our inquiry of April
28, 1978. The Service informs us that in their opinion the provisions of
the Immigration and Nationality Act which would normally require the
filing of a visa petition in similar cases under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, are not applicable.
  The Service informs us that a particular form has been designated for
use to apply for adjustment of status under this special statute. In view
of the fact that at the time the respondent filed her motion that form was
not yet available, the respondent should be allowed an opportunity to
complete the appropriate form on remand.
  We find the documentation submitted by the respondent sufficient to
establish prima facie eligibility for the relief she seeks. Although a visa
petition is not required, section 107 of the Act of October 28, 1977, makes
applicable the definition of "spouse" contained in the Immigration and
Nationality Act. Accordingly, it -will be the respondent's burden to
prove her marriage is one otherwise recognizable for immigration purposes before adjustment of status is granted under 

ORDER: The record is remanded for further proceedings.




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