YODYING

                                                         Interim Decision #2738




                              MATTER OF YODYING
                          In Deportation Proceedings

                                    A-20543713
                     Decided by Board October 30, 1979
An application for adjustment of status (1485) is effectively filed on the date it was
 submitted simultaneously with a visa petition where the 1-485 was retained for
 processing on that date, was not returned to the respondent for any reason, an
 immigrant visa was available on that date, and where the accompanying visa petition
 was eventually approved. 8 C.F.R. 245.2(a). See Matter of Garcia,161gcN Dec. 653 (Blit
 19'78).
CHARGE:
 Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)J—Nonimmigrant visitor—
                       remained longer than permitted
ON BEHALF OF RESPONDENT: Bill W. Lew, Esquire
                            Schonfeld, Lew & Savin
                            2500 Wilshire Boulevard
                            Los Angeles, California 90057
BY:   Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members


  The respondent has appealed from the decision of an immigration
judge, dated September 19, 1978, denying her application for adjustment of status. The record will be remanded.
  The respondent is a 37-year-old native and citizen of Thailand who
entered the United States on January 19, 1970, as a nonimmigrant
visitor. On December 2, 1974, the respondent was found deportable
under section 241(a)(2) of the. Immigration and Nationality Act, 8
U.S.C. 1251(a)(2), as a nonimmigrant who had remained in the United
States beyond the period of her authorized stay. The respondent was
granted the privilege of voluntary departure on or before March 2,
1975.
   On July 14, 1976, a sixth-preference visa petition (Form 1-140) was
filed on the respondent's behalf by the Gilbert Marking Company. The
petition was based upon a labor certification filed on November 29,
1974, and approved on June 2, 1976. On July 14, 1976, the respondent
also filed her application for adjustment of status (Form 1-485). Noted
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on that application are the words "insists on filing 1-485 also." The visa
petition was approved on May 25, 1977. •
   In his decision, the immigration judge concluded that the respondent was statutorily ineligible for adjustment because she had continued in unauthorized employment after January 1, 1977. See section
245(c) of the Act, 8 U.S.C. 1255(c). In his decision, the immigration
judge held that the respondent's filing of her adjustment application
was ineffective:
  The respondent did not meet the eligibility requirements of Section 245 until her visa
  petition was approved on May 25, 1977.... If the matter had been brought before me as
  a Motion to Reopen [before that date the] regulations would have mandated a denial of
  her motion. . .. The 'filing' of the Application for Adjustment of Status in this case
  could only have been accomplished before an immigration judge in a proper deportation proceeding.
  At the time the respondent filed her adjustment application with her
1-140, 8 C.F.R. 245.2(a) (1976) provided, in part, as follows:
  (1) An application for adjustment of status ... by an alien after he has been served
  with an order to show cause ... shall be made and considered only in proceedings
  under Part 242 of this chapter. . . .
  (2) Before an application for adjustment of status may be considered properly
  filed, a visa must be immediately available. If a visa would be immediately available
  only upon approval of a vice petition, the application will not be considered properly
  filed unless such petition has first been approved. If a visa petition is submitted
  simultaneously with, the adjustment application, the adjustment application shall be
  retained and processed only if the petition is found to be in order for approval upon
  initial review by an immigration officer, is approved, and approval makes a visa
  immediately available. If the petition is returned to the petitioner for any reason, or
  decision thereon is deferred for investigation, interview, labor certification or consultation with another Government agency, or if the petition is denied, the adjustment
  application shall not be considered as having been properly filed_ .         (Emphasis
  supplied.)
   The immigration judge appears to have relied on the language in 8
C.F.R. 245.2(a)(1), above, to find an "ineffective" filing of the respondent's 1-485. However, this reading effectively precludes an alien in
deportation proceedings from taking advantage of the simultaneous
filing provisions of 8 C.F.R. 245.2(a)(2). We find that the language of
the regulation does not compel such a result.'
  ' We note that we have interpreted the revised provisions of 8 C.F.R. 245.2(a)(2) to
permit an alien in deportation proceedings to take advantage of the simultaneous filing
provision in Matter of Garcia, 16 LEN Dec. 653 (BIA 1978). We there stated:
  It has been suggested that the simultaneous filing provisions of 8 C.F.R. 245.2(a)(2)
  were designed to apply only where the visa petition and adjustment application are
  submitted to the District Direetor prior to the institution of deportation proceedings
  We find that neither the language of the regulation itself nor policy considerations
  support an interpretation which would render the regulation nugatory after an Order
  to Show Cause has been issued and we decline to adopt such a restrictive

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  The regulation permits an alien to file a visa petition and an adjustment application simultaneously if certain conditions are met. In the
present case, the respondent's 1-485 was retained for processing by an
immigration officer, an immigrant visa was available on that date (see
Department of State Visa Bulletin, Vol. II, No. 102, July 1976), and the
underlying visa petition was (eventually) approved. There is no indication in the record that the .application was returned to the respondent
for any reason. Accordingly, we find that the respondent, in accordance
with the provisions of 8 C.F.R. 245.2(a)(2) (1976), effectively filed her
adjustment of status application on July 14, 1976, and that she is not
barred from adjustment under the provisions of section 245(c) of the
Act.
   As the immigration judge determined that the respondent had not
established statutory eligibility for section 245 relief, he did not reach
the issue of discretion. We will, therefore, remand the record for
further proceedings to determine if the respondent's application merits a favorable exercise of discretion.
   ORDER: The record is remanded for further proceedings in accordance with the foregoing opinion and the entry of a new decision.




  interpretation.
Id. at 4. The same considerations support our decision herein that the respondent
effectively filed her adjustment application on July 14, 1976.

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