Interim Decision #2821
MATTER OF KHAN
In Deportation Proceedings
A.-21187278
Decided by Board August 21, 1980
(1) Where the employment of the applicant for adjustment of status under section 245 of
the Act, 8 U.S.C. 1245, was neither authorized by the Service nor found not to have an
adverse impact on this country's labor market, the unauthorized employment was a
negative factor to be considered in the exercise of discretion. Matter of Arai,13 I&N
Dec. 494 (BIA 1970), and Matter of Lars,
16 I&N Dec. 432 (BIA 1978), distinguished.
(2) Although unauthorized employment is as adverse consideratiun, that factor alone
should not ordinarily result in the discretionary denial of adjustment of status to
those individuals who are statutorily eligible for that relief and who present no other
negative considerations.
(3) Adjustment of status should not be denied in the exercise of discretion to the
respondent, who was certified as a member of the professions in 1976 and who
presented no adverse considerations other than his unauthorized employment.
CHARGE:
Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student—
remained longer than permitted
ON BEHALF OP RESPONDENT: ON BEHALF OF SERVICE:
Samuel D. Myers, Esquire George W. Masterton, Esquire
230 West Monroe Street Appellate Trial Attorney
Suite 2812
Chinagr, Illinois SOUK
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The respondent appeals from the July 6, 1978, decision of the immigration judge finding him deportable as charged, denying his application for adjustment of status in the exercise of discretion, but
granting him the privilege of voluntary departure. The appeal will be
sustained and the record remanded.
The respondent is a 30-year-old native and citizen of India, who
entered the United States as a nonimmigrant student in September
1974. He had entered to study mechanical engineering at the Chicago
Technical College and was authorized to remain until September 29,
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Interim Decision #2821
1975. Shortly after entry, the applicant began part-time employment
without applying for permission to work. He testified that it had
become necessary for him to work because his mother's asthma condition worsened almost immediately after he left India and because his
funds in India, which he had planned to use for his education, were
necessary to support her.' The respondent successfully finished his first
semester, but then left school because of a shortage of funds and begun
full-time employment. He later enrolled in a masters degree program
at Northeastern University and in January 1977 was a full-time day
student at DePaul University.
In July 1975, while still within the period he was authorized to
remain as a student, the respondent applied for a labor certification as
a member of the professions, i.e. a chemist. See 29 C.F.R. 60.3(b) (1975).
The petition was approved in June 1976. The respondent then applied
to the District Director for adjustment of status as a nonpreference
immigrant. The application was denied in April 1977. An Order to
Show Cause was issued in June 1977 charging the respondent with
being deportable under section 241(a)(2) of the Act, 8 U.S.C. 1251(a)(2),
as an "overstayed" nonimmigrant.
At the deportation hearing in August 1977. the respondent conceded
deportability, but renewed his application for adjustment of status.
The immigration judge found him statutorily eligible for that relief,
but denied adjustment in the exercise of discretion because of the
respondent's unauthorized employment. The immigration judge found
this case distinguishable from Matter of Arai, 13 I&N Dec. 494 (BIA
1970) and Matter ofLam,16I&N Dec. 422 (BLit 1978). He noted that the
unauthorized employment in those cases was found not to be detrimental because labor certifications were ultimately granted for the very
employment in question, whereas in this case the respondent was
never granted a labor certification for the unauthorized employment
he engaged in. The immigration judge concluded that the equities
presented by the respondent were not sufficient to outweigh this adverse consideration. Adjustment of status was, therefore, denied in the
exercise of discretion.
' The record file includes an affidavit from the respondent's mother in which she
indicates that she seriously suffered from asthma starting on October 3, 1974. She stated
that by the time she recovered from her asthma, she was afflicted with a serious attack of
tuberculosis. The record also includes a statement from a physician in India that he
treated the respondent's mother for chronic bronchial asthma starting in "about"
October 1974 and a certificate from the director of a tuberculosis clinic that she had been
undergoing treatment since September 12, 1975. The respondent's mother indicated that
her medical expenses precluded her from sending her son money for his education.
Although the immigration judge questioned whether the respondent's mother's illness
was the reason he began working, the nature and circumstances of the mother's illnesses
were not placed in doubt.
Interim Decision #2821
The respondent appeals from the denial of adjustment of status.
Through counsel, he submits that unauthorized employment should
not of itself lead to a discretionary denial of adjustment of status to a
respondent who is statutorily eligible for such relief. It is submitted
that Matter of Arai, supra, and Matter of Lam, supra, are controlling
here, that the immigration judge erroneously failed to give any weight
to the favorable fact that the respondent had an approved labor
certification as a professional, and that relief should have been granted
in the exercise of discretion. Counsel submits that unauthorized employment should not alone be determinative of the discretion issue
because "of the common knowledge that almost every applicant for
permanent residence has worked without permission."
We agree with the immigration judge that the facts here are distinguishable from those in Matter of Arai, supra, and Matter of Lam,
supra. In both Arai and Lam, the respondents, who had worked
without permission, were ultimately certified by the Department of
Labor for the very employment they had previously engaged in. Thus,
the Department of Labor found that their employment was not of a
nature to have any adverse impact on the American labor market.
Their employment in fact was necessary to the employer who applied
for the labor certification on their behalf. Under these circumstances,
we found that the unauthorized employment should not be deemed an
adverse factor in determining whether adjustment of status was warranted in the exercise of discretion.
In this case, as noted by the immigration judge, the respondent's
employnient was neither authorized by the Service nor found not to
have had an adverse impact on this country's labor market. Under
these circumstances, unauthorized employment is a negative consideration to be weighed in the exercise of discretion.
This conclusion, however, is not dispositive of the case before us.
Although unauthorized employment of the type at issue here is an
adverse factor, we find that this factor alone should not ordinarily
result in the discretionary denial of adjustment of status to those
individuals who are statutorily eligible for that relief and who present
no other negative considerations'
In this regard, we note that as of January 1, 1977, section 245(c) of
the Act has expressly precluded certain aliens from adjusting their
status if they engaged in unauthorized employment. This statutory
The nature and circumstances of an individual's unauthorized employment, however,
may in certain cases be such•as to alone warrant a discretionary denial of relief absent a
. showing of significant countervailing equities (e.g., where it is clear that the employment
had a significant adverse impact on the labor market or where the timing of the
employment cast doubts on the individual's true intentions at the time of entry as a
nonimmigrant).
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Interim Decision 112821
preclusion does not apply to those individuals whose only unauthorized
employment occurred prior to January 1, 1977, or who engaged in
unauthorized employment after filing their adjustment application, or
who qualify as "immediate relatives" of United States citizens. We
decline to adopt a rule regarding the exercise of discretion which could
in effect expand this statutory bar beyond the limits set by Congress
and prevent adjustment of status to all aliens who engaged in
unauthorized employment. Accordingly, we conclude that if an individual is not within the scope of the section 245(c)(2) bar and if his or
her unauthorized employment is the only adverse matter of record,
adjustment of status should not ordinarily be denied in the exercise of
discretion.
In the present case, the respondent was denied adjustment of status
because the immigration judge did not find sufficient countervailing
equities to offset the adverse impact of the respondent's unauthorized
employment' There were no other adverse matters identified. It was
not concluded that the respondent had entered with a preconceived
intent to remain permanently or that he had engaged in any fraud or
misrepresentation in connection with his application for his student
visa. He had no prior immigration violations nor any criminal record.
His certification as a professional chemist in 1976 indicated that he
could be a "definite boon to the American culture and workforce." See
Matter of Stamatiades, 11 I&N Dec. 643, 645 (D.D. 1966).
Under these circumstances, we find that the respondent should not
be denied adjustment of status in the exercise of discretion. The appeal
will accordingly be sustained. The record will be remanded for further
processing of the respondent's application for adjustment of status
and for the entry of an order not inconsistent with the foregoing
decision.
ORDER? The order of the immigration judge is vacated and the
record is remanded for further proceedings consistent with this
decision.
' This case is not controlled by section 245(c)(2). Both the employment in question here
and the filing of the adjustment application by the respondent occurred prior to January
1, 1977.
