Interim Decision #2502 

MATTER OF GHONG 

In Deportation Proceedings 

A-21778806 

Decided by Board June 17, 1976 

Where the sole basis for respondent's ineligibility for adjustment of status under section 

245 of the Immigration and Nationality Act was that an immigrant visa number was not 

immediately available to him, and respondent filed a motion to reopen deportation 

proceedings at a time when his priority date for the issuance of an immigrant visa was 

within 90 days of the visa availability date shown in the Department of State bulletin on 

the Availability of Immigrant Visa Numbers, Operations Instruction 245.4(a)(6) was 

applicable to his case and required the proceeding to be held in abeyance because under 

8 CFR 245.1(g)(1), an immigrant visa is considered available for accepting and processing a section 215 application when a preference or nonpreference applicant (respondent 

here) has a priority date on the visa waiting list which is not more than 90 days later 

than that shown on the Visa Office Bulletin of the Department of State. See Matter of 

Ho, • 15 I. & N. Dec. 692 (BIA 1976). 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant--

r emained longer 

ON BEHALF OF RESPONDENT: Forseher, Glassman & Elias, Esquires 

863 Seventh Avenue 

New York, New York 10001 

In a decision dated June 30, 1975, the immigration judge denied the 

respondent's motion to reopen these deportation proceedings. The respondent has appealed from that•denial. The record will be remanded to 

the immigration judge. 

The respondent is a native and citizen of Korea. He has been found 

deportable under section 241(a)(2) of the Immigration and Nationality 

Act as a nonimmigrant who has remained beyond the authorized length 

of his stay. Deportability is not now in issue, and the respondent seeks a 

reopening of the proceedings for the sole purpose of allowing him to 

apply for adjustment of status under section 245. 

The record indicates that the respondent desires adjustment of status 

as a nonpreference immigrant.He has an approved labor certification 

issued pursuant to section 212(a)(14), and the Service does not allege 

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Interim Decision #2502 

that he is admissible under any of the subdivisions of section 212(a). The 

respondent, however, is not presently eligible for section 245 relief 

because a nonpreference immigrant visa is not immediately available to 

him. 

The record indicates that the respondent's labor certification application was accepted for processing on August 14, 1974. The respondent 

therefore has a priority date for the issuance of a nonpreference visa 

number as of that date. See 8. CFR245.1(g)(2). . 

The respondent's motion to reopen was submitted with the fee paid to 

the Service on April 7, 1975. The Department of State bulletin on the 

Availability of Immigrant Visa Numbers for April 1975 shows that 

nonpreference visa numbers for natives of Korea were only available to 

aliens with priority dates earlier than June 1, 1974. The respondent's 

priority date of August 14, 1974, was not earlier than the June 1, 1974 

"cut-off" date, and .an immigrant visa was not then immediately available to him within the meaning of section. 245. 

Nevertheless, in April of 1975, when the respondent submitted his 

motion, his priority date was within 90 days of the date appearing in the 

visa availability bulletin. The Service therefore would have been willing 

to accept and process the respondent's section 245 application in accordance with 8 CFR 245.1(g)(1). The respondent relies on this fact to 

argue that he was prejudiced by Service delay in this case, because 

nonpreference visa numbers for natives of Korea had become totally 

unavailable by the time the immigration judge adjudicated the respondent's motion. 

We, however, can perceive no prejudice to the respondent in this 

matter. In May of 1975, less than one month after the respondent 

submitted his motion to reopen, nonpreference visa numbers became 

unavailable to natives of Korea. These visa numbers remained totally 

unavailable through January of 1976. In February, March, and April of 

1976, nonpreference numbers were available to natives of Korea with 

priority dates of earlier than January 1, 1974. The respondent's August 

14, 1974 priority date did not qualify. Nonpreference numbers again 

became unavailable for Koreans in May of 1976, and continue to remain 

unavailable. 

As can be seen from this review of the visa availability situation 

affecting the respondent, a nonpreference visa number was never immediately available to him on or after the date on which he submitted 

his motion to reopen. The respondent has never met the statutory 

requirements for adjustment of status during this period of time. His 

section 245 application could not have been granted, even if there had 

been immediate action on the motion. He can claim no prejudice by any 

minimal delay which may have occurred in this case. 

The respondent is not presently eligible for adjustment of status. On 

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Interim Dec:.sion #2502 

this record, however, his ineligibility appears to stem solely from the 

unavailability of an immigrant visa number. We have concluded that the 

respondent comes within the terms of Operations Instruction 

245.4(a)(6), and we shall remand the record to the immigration judge in 

accordance with Matter of Ho, 15 L & N. Dec. 692 also decided today. 

In Operations Instruction 245.4(a)(6) the Service has provided for the 

holding in abeyance of any case in which an alien has submitted a section 

245 applieatiln at a time when a visa number was available to him, but 

in which he is precluded from receiving section 245 relief solely because 

a visa number is not available at the time the processing of the case is 

completed. As we have indicated, an immigrant visa has not been 

immediately available to the respondent on or after the date he submitted his motion to reopen. However, during the month the respondent 

submitted his motion, his priority date was within 90 days of the date 

shown in the applicable visa availability bulletin. In 8 CFR 245.1(g)(1) 

the Service states that: 

. . . An immigrant visa is considered available for accepting and processing the application Form T-e185 if the preference or nonpreferenee category applicant has a priority 

date on the waiting list which is not more than 90 days later than the date shown in the 

Bulletin or tl..e Bulletin shows that numbers for visa applicants in his category are 

current. . . . 

The Operations Instruction, which is set forth in its entirety in Matter 

of Ho, supra, is evidently designed to apply to an alien who submitted 

his application for adjustment of status when an immigrant visa was 

considered available for accepting and processing the application in 

accordance with 8 CFR 245.1(g)(1). The respondent therefore qualifies 

under the Operations Instruction and we shall remand the record to the 

immigration judge for further action consistent with this opinion. 

ORDER: The record is remanded to the immigration judge. 

702