Interim Decision #2886
MATTER OF ONAL
In Section 246 Proceedings
A-20058053
Decided by Board October 15, 1981
Decided by Board November 22, 1988
(1) Where alien respondent's labor certification was invalidated by the Department of
Labor under the applicable federal regulations, rescission of the respondent's adjustment
of status as a nonpreference immigrant— which was based upon the validity ofthat labor
certification— is mandated by section 246 of the Immigration and Nationality Act,
8 U.S.C. 1256.
(2) Where the Immigration and Naturalization Service instituted rescission proceedings
against the respondent within the statutory 5 year period after his adjustment of
status occurred, the subsequent delay in holding the rescission hearing was not shown
to be unreasonable or prejudicial, nor is it the type of delay against which the doctrine
of estoppel by laches will protect.
ON BEHALF OF' RESPONDENT: Aaron I. Maltin, Esquire
Cohen & Tucker
1501 Broadway
New York, New York 10036
By: Milhollan, Chairman; Maniatis, Maguire, Morris, and Yucca, Board Members
BEFORE THE BOARD
(October 15, 1981)
This matter is before the Board on appeal from the immigration judge's
decision of January 22, 1981, rescinding the respondent's adjustment of
status to that of an alien lawfully admitted for permanent residence
pursuant to section 246 of the Immigration and Nationality Act, 8 U.S.C.
1256. The appeal will be dismissed_
The respondent is a 44-year-old native and citizen of Turkey who
entered the United States in May 1972, as a nonimmigrant visitor. On
February 16, 1973, a labor certification was issued on his behalf as a
foreign food specialty cook. Based upon this approved labor certification,
the respondent's status was adjusted to that of an alien lawfully admitted for permanent residence into the United States under section 245 of
the Act, 8 U.S.C. 1255, on 06tober 24, 1973, as a nonpreference
immigrant. However, in a letter dated March 5, 1974, the United States
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Department of Labor informed the District Director that the respondent had not been eligible to receive the labor certification at the time it
was issued and therefore, the labor certification was "declared to be
invalid" pursuant to federal regulations (then in effect) at 29 C.F.R.
60.5(g).' Thereafter, on May 23, 1977, the District Director served the
respondent with a "Notice of Intent to Rescind" his adjustment of status,
in compliance with 8 C.F.R. 246.1, stating that the Department of Labor
had invalidated his labor certification.' The respondent filed a timely
answer contesting the allegations contained in the "Notice," whereupon,
under 8 C.F.R. 246.3, a rescission hearing was subsequently held with
the immigration judge concluding that the respondent's adjustment of
status to permanent resident shoilir. be rescinded.
On appeal, the respondent argue "The fact that [my] labor certification was withdrawn [revoked] by the Labor Department on March 5,
1974, has no effect on the proceedings. [I] was granted permanent residence in the United States on October 24, 1973. The efficacy of that
document was ended when [I) was granted permanent residence based
thereon." This argument is unpersuasive. First, it ignores the fact that
the Department of Labor invalidated the labor certification because the
respondent was not eligible therefor at the time it was originally issued,
which indicates that the labor certification was invalid ab initio, and so
of no effect at any time. Moreover, section 246 of the Act specifically
contemplates a reexamination of the facts and circumstances existing at
the time of the alien's adjustment of status in order to determine whether
that adjustment was properly accorded. Thus, whether the Department
of Labor's action is viewed as an actual nunc pro tune invalidation of the
labor certification or, instead, as an authorized and expert determination that the respondent was not in fact qualified and eligible to receive
the labor certification, the result is the same; the respondent did not
qualify for a valid labor certification, and, consequently, the entire basis
upon which he obtained his adjustment of status simply did not exist.
29 C.F.R. ti41.6%) stated as follows:
Certifications issued pursuant to this part are invalid if the representations upon which
they are based are materially incorrect. Materially incorrect, for the purposes of this
paragraph, means that if the correct facts had been known a certification could not have
been issued pursuant to the requirementinet forth at section 212(a)(14) of the Immigration and Nationality Act.
2 This "Notice" also stated that a Service investigation had determined the respondent
was employed not as a specialty cook but only as a dishwasher and at a salary far below
that specified by the approved labor certification. The investigation also found that the
restaurant did not even offer a menu which properly could be termed of a "foreign food
specialty" type. Our decision here is based solely upon the Department of Labor's invalidation of the labor certification and therefore we need not address this finding nor the
respondent's hearsay objections fsee Matter of DeVera, IS i&N nee 596 (MA 1977)) to
inclusion in the record of the report of that investigation.
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Section 246 of the Act states, in part, "If, at any time within five
years after the status of a person has been otherwise adjusted under the
provisions of section [245 of the Act]. . . to that of an alien lawfully
admitted for permanent residence, it shall appear to the satisfaction of
the Attorney General that the person was not in fact eligible for such
adjustment of status, the Attorney General shall rescind the action
taken granting an adjustment of status to such person. . . ." (Einphasis
supplied.) Moreover, 8 C.F.R. 245.1(e) recites that, "An applicant who
is a nonpreference alien seeking adjustment of status for the purpose of
engaging in gainful employment in the United States, . . . is ineligible
for the benefits of section 245 of the Act unless an individual labor
certification is issued by the Secretary of Labor . . . ." (Emphasis
supplied.) It is clear that inasmuch as a valid labor certification is a
necessary prerequisite for the adjustment of status of this nonpreference
alien, and his labor certification was invalid because he was not qualified
therefore, he "was not in fact eligible" for adjustment of status.
Therefore, rescission of that adjustment of status is mandated by section 246 of the Act.3
Finally, the respondent contends that because of the delay in holding
the hearing only some 3 years after service of the "Notice of Intent to
Rescind," rescission should be precluded under the doctrine of estoppel
by laches. Estoppel by !aches is an affirmative defense in which the
party must establish that he changed his position to his detriment and
prejudice through reliance upon the unreasonable delay in instituting
actions against him. See Akers v_ State Marine Lines, Inc., 344 F.2d 217
(5th Cir. 1965); Van Bourg v. Nitze,
388 F.2d 557 (D.C. Cir. 1967);
Ernie Industries, Inc. -v. Patentee, Inc.,
478 F.2d 562 (2d Cir. 1973).
Here, there is no evidence to show that the respondent changed his
position in any way, or that he was prejudiced or misled by the 2 yeir -
delay in commencing the rescission hearing. In any event, estoppel by
laches only protects against prejudice caused by unreasonable delay in
bringing an action, not against problems created by the pendency of the
action after it is instituted. Boone v. Mechanical Specialties Co.,
609
F.2d 956, 958 (9th Cir_ 1979). The District Director instituted these
rescission proceedings against the respondent on May 23, 1977, well
within the statutorily prescribed 5 year period following the respondent's
adjustment of status to permanent resident. Thus, the subsequent delay
Under current federal regulations, the Department of Labor is no longer empowered
to invalidate a labor certification; that authority now rests with the Service and American
consuls. See 20 C. F.R. 656.300); Service Operations Instruction (0.1.) 204.4(e)(8); Vol. 9,
Foreign Affairs Manual. Part. III, 42.91(a)(14), note 9. There would seem to be no reason
why the result reached herein would not obtain In an appropriate case under these new
labor certification invalidation procedures as well.
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of some 3 years in holding the respondent's rescission hearing is not the
type of delay against which estoppel by lathes will protect. Ibid. Morever,
while the United States Supreme Court has never held the doctrine of
estoppel to be applicable in immigration proceedings, in INS v. Hibi,
414 U.S. 5 (1973), the Court stated that, if appropriate at all, estoppel
can only arise from "affirmative misconduct" by the Government. In this
case, mere inaction in going forward with the respondent's rescission
hearing cannot be construed as an affirmative act amounting to misconduct.
ORDER: The appeal is dismissed.
BEFORE THE BOARD
(November 22, 1983)
The Immigration and Naturalization Service moves this Board to
reconsider our decision of October 15, 1981, wherein we dismissed the
respondent's appeal from a decision of an immigration judge rescinding
his adjustment of status pursuant to section 246 of the Immigration and
Nationality Act, 8 U.S.C. 1256. The Service motion requests that the
Board "withdraw from its position that the Department of Labor was
authorized to, and did in fact find, that the respondent was unqualified
for the position [of foreign food specialty cook]." Our previous decision
in this case did not in fact include such a holding. However, the motion
to reconsider will be granted for the limited purpose of clarifying our
prior orderOur decision of October 15, 1981, referenced the Department of Labor's
action (under long since superseded regulations) invalidating the
respondent's labor certification upon which he had obtained his adjustment of status. Therein, we stated that "the Department of Labor invalidated the labor certification because the respondent was not eligible
therefore at the time it was issued." We similarly referred to the Department of Labor's "determination that the respondent was not in fact
qualified and eligible to receive the labor certification." The word
"qualified" was used merely as a synonymous adjunct to the word
"eligible," and then only with reference to the overall issuance of the
labor certification. This language was not intended to suggest that the
invalidation was based on an assessment by the Department of Labor of
the alien's particular qualifications to adequately perform the duties of a
specialty cook. In fact, as the decision of the Department of Labor was
not specific as to its reasons, our decision was equally vague as to that
Department's rationale for invalidating the petition.'
The Department of Labor considers several factors in determining whether or not to
issue a labor certification under the provisions of section 212(a)(14) of the Act, 8 U.S.C.
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It was not our intent to suggest in our prior decision . either that the
Department of Labor had authority to find an alien unqualified to perform a particular job or that such a determination had occurred in the
case before us. Accordingly, the motion to reconsider is granted for the
limited purpose of clarifying this aspect of our decision of October 15,
1981.
ORDER The motion to reconsider is granted.
FURTHER ORDER: The decision of October 15, 1981, is reaffirmed as clarified above.
1182(a)(14). See 20 C.F.R. 656.24(b); 29 C.F.R. 60.6 (1974). Whether an alien qualifies for
the job in question, however, is not a determination expressly allocated to the Department of Labor. See Madany v. Smith, 696 F.2d 1008, 1011-13 (D.C.C. 1983); Stewart
Infra-Red Commissary of Mass:, Inc. v. Coomey,
661 F.2d 1, 3 (1 Cir. 1981). This
eligibility determination is vented with the Immigration and Naturalization Service. See
section 204(b) of the Act, 8 U.S.C. 1154(b); 8 C.F.It. 204.1(c) and 204.2(g).
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