Interim Decision #2518 

MATTER OF CUING 

In Deportation Proceedings 

A-20675522 

Decided by Board August 17, 1976 

(1) Under 8 CFR 245.1(d), and applicant for preference status such as respondent herein is 

not eligible for adjustment of status under section 245 of the Immigration and Nationality Act unless he is the beneficiary of a valid unexpired visa petition filed in 

accordance wits► 8 CFR 204 and approved to accord him such status. Burden is on 

respondent to prove to the satisfaction of the district director that he meets the 

requirements for approval of the visa petition. Where such petition has not been 

approved, respondent is statutorily ineligible for section 245 relief. 

(2) Under 8 CFR 103.1(m)(2) and (n), determination of sixth-preference eligibility is 

vented solely w. thin the jurisdiction of the district director and regional commissioner. 8 

CFR 242.8 doe; not vest authority over such a question in the immigration judge, and 8 

CFR 3.1(b)(5) specifically excepts appellate jurisdiction in such a question from the 

Board of Immigration Appeals. 

(a) On motion for reconsideration, respondent must present prima fade evidence of 

eligibility for section 245 relief to the Board. Lack of approval of the sixth-preference 

visa petition renders the respondent ineligible for section 245 relief. Respondent's 

failure to present prima fade evidence of eligibility on motion for reconsideration is 

sufficient ground for denial of that motion by the Board. 

CHARGE: 

Order: Act of 3952—Section 241(a)(2) U.S.C. 1251(a)(2)]—Nonimmigrant visitor—

remained longer. 

ON BEHALF OF :RESPONDENT: ON BEHALF OF SERVICE: 

Wallace Heitman, Esquire Daniel L. Kahn 

1014 Mercantile Bank Bldg. Trial Attorney 

Dallas, Texas 75201 

On August N, 1975, we dismissed the respondent's appeal from an 

order of the immigration judge (following a reopened hearing) denying 

respondent's application for adjustment of status under section 245 of 

the Immigration and Nationality Act; and sustained his appeal from an 

order of the immigration judge denying respondent's application for 

voluntary departure and ordering his deportation to the Republic of 

China. This case is now before us on a motion to reconsider our prior 

decision on the issue of adjustment of status. We note that counsel has 

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Interim Decision #2518 

filed a Petition for Review with the United States Court of Appeals for 

the Fifth Circuit in this matter. On December 16, 1975, counsel filed a 

Motion to Abate in the United States Court of Appeals. That motion 

was granted by the Court of Appeals on December 29, 1975 pending our 

review of respondent's motion. 

The respondent is a 58-year-old male alien, native and citizen of the 

Republic of China. He entered the United' States ' at San Francisco,• 

California as a nonimmigrant (business) visitor on June 10, 1973. The 

respondent was authorized to remain in the United States until August 

9, 1973. He remained beyond that date. Deportability was established 

at respondent's first hearing by clear, convincing and unequivocal evidence. 

At his reopened hearing, the respondent requested adjustment of 

status. The immigration judge found that respondent' was statutorily 

ineligible for adjustment of status because he was unable to show that 

he had a valid labor certification. The immigration judge also denied 

adjustment of status in the exercise of his administrative discretion. On 

appeal, respondent submitted a new labor certification issued to him on 

January 27, 1975. That document indicated that the respondent has 

been employed by the Blue Hawaii Restaurant of Arlington, Texas as -a 

Chinese specialty cook since July of 1973. We denied respondent's 

application for adjustment of status on the sole ground that a visa 

number for the Republic of China in the nonpreference category was not 

available to him as of the date of our decision. - 

In his motion papers, counsel informs us that a visa petition for a sixth 

preference was filed with the Service on respondent's behalf on 

November 5, 1973 (petition is currently pending before the Service); 

that respondent has a valid labor certification; that his priority date is 

December 17, 1974; and that as of December of 1975, visa numbers were 

available for the Republic of China in the sixth prpference category. 

Counsel contends that the respondent is statutorily eligible for adjustment of status and requests that we ". . . advise the Service to consider 

said Visa Petition for 6th Preference in line with this Motion . . . ." 

Section 245(a) of the Immigration and Nationality Act provides that: 

The status of an alien, other than an alien crewman, who was inspected and admitted or 

paroled in the United States may be adjusted by the Attorney General, in his discretion 

and under such regulations as he may prescribe, to that of an alien lawfully admitted for 

permanent residence if (1) the alien makes an application for such adjustment, (2) the 

alien is eligible to receive an immigrant visa and is admissible to the United States for 

permanent residence, and (3) an immigrant visa is immediately available to him at the 

time his application is approved. 

8 CFR 245.1(d) provides that an applicant for preference status such 

as this respondent is not eligible for the benefits of section 245 of the 

Immigration and Nationality Act (8 U.S.0 1255) unless he is the ben773 
Interim Decision #2518 

eficiary of a valid unexpired visa petition filed in accordance with 8 CFR 

204 and approved to accord him such status. 8 CFR 103.1(m)(2) and (n) 

places the determination of whether or not . an alien possesses the 

qualification,3 for sixth preference status solely within the jurisdiction of 

the appropriate district director and regional commissioner. 8 CFR 

242.8 does not vest in the immigration judge authority over such a 

question; and 8 CFR 3.1(b)(5) specifically excepts appellate jurisdiction 

of such a question from this Board. 

It is clear from the record that the respondent does not possess an 

approved visa petition for a sixth preference. Therefore, he is statutorily ineligible for adjustment of status under section 245 of the Act.. 

Respondent's remedy lies with the district director. There is no merit to 

counsel's request that we advise the district director to consider respondent's visa petition in light of this motion. It is respondent's burden 

to prove .to the satisfaction of the district director that he meets the 

requirements for approval of his visa petition for a sixth preference. 

Respondent has available to him the remedy of a motion for reconsideration should future events in connection with his visa petition render 

such action appropriate. See Matter of Ficalora, 11 I. & N. Dee. 592 

(MA 1966). 

We conclude that the respondent has not presented prima facie evidence to establish that he is statutorily eligible for adjustment of status 

under section 245 of the Act. Accordingly, the motion to reconsider will 

be denied. • 

ORDER: The motion to reconsider is denied. 

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