Interim Decision #2578 

MATTER OF DANQUAH 

In Deportation Proceedings 

A-20719285 

A-20719286 

Decided by BoarcZ April 19, 1977 

(1) Respondents who are husband and wife applied in reopened deportation proceedings 

for adjustment of status under section 245 of the Immigration and Nationality Act based 

on issuance of a labor certification to the female respondent as an African Specialty 

Cook. The application of the husband is dependent on that of his wife. The immigration 

judge denied the applications on the ground that the labor certification issued to the 

female respondent was no longer valid since she had left the employment specified in the 

labor certification. 

(2) Female respondent had received two labor- certification° as an African Specialty Cook_ 

From October 1975 to March 26, 1976, she was employed in the capacity specified in her 

labor certification at the second establishment She was forced to cease her employment 

March 26, 1976, temporarily for emergency surgery and hospitalization. She attempted 

to return to her employment May 5, 1970, but did not do so because her employer was 

only operating on a part-time basis, would not pay her the agreed-upon wage, and had 

not remodeled the kitchen area as promised. 

(3) An application for adjustment of status filed under section 245 of the Act is assimilated 

to an application for an immigrant visa made to consular officer abroad. An applicant for 

a visa overseas, whose offer of employment on which the labor certification was based 

was withdrawn, could no longer base his visa application on that labor certification. 

Similarly, an applicant for adjustment of status, who is no longer employed in the 

position for which the labor certification was granted, la not eligible for an immigrant 

visa based on that labor certification. The immigration judge properly denied respondents' applications. 

(4) Metter of Stevens, 12 I. & N. Dec, 494 (BIA 1968) reaffirmed. 

CHARGE: 

Order: Act of 1952—.Section 241(a)(2) 18 1251(a)(2))—Nonimmigrant visitor— 

remained longer (both respondents) 

ON BEHALF OF RESPONDENTS: Joseph F. O'Neil, Esquire 

116 Lincoln Street 

Boston, Massachusetts 02111 

BY: MilhoIlan, Chairman; Wilson, Maniatis, and Appleman, Board Members 

The respondents,, husband and wife, were found deportable under 

section 241(a)(2) of the Immigration and Nationality Act, as temporary 

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Interim Decision #2578 

visitors who had overstayed the terms allowed in their visas, on June 

26, 1975, and were granted the privilege of voluntary departure. On 

November 4, 1975, we dismissed an appeal from that decision. On 

August 9, 1976, the District Director denied their application for a stay 

of deportation. On September 9, 1976, we ordered the reopening of 

proceedings to allow consideration of an application by each of the 

respondents for adjustment of status under section 245 of the Act, based 

upon a labor certification which had been granted to the female respondent. At the reopened hearing on November 15, 1976, the immigration 

judge denied adjustment of status to both respondents on the ground 

that the female respondent's labor certification was no longer valid, and 

the application of the male respondent depended directly upon the 

success of the female's application. The respondents now appeal from 

the denial of adjustment of status. The appeal will be dismissed. 

The respondents are natives and citizens of Ghana. The female respondent was accorded a labor certification by the Department of Labor 

in October, 1975 as an African Specialty Cook. On March 3, 1976, she 

obtained a second labor certification for another establishment, also as 

an African Specialty Cook. The respondent was employed in the capacily specified on her labor certification al.. the second establishment from 

December 1975 until March 26, 1976, when she was forced to cease 

employment temporarily upon being hospitalized on an emergency basis 

for surgery. The respondent. was discharged from hospitalization on 

May 5, 1976, and immediately sought to resume her employment. However, she testified at the hearing that upon her return, her employer 

was only operating on a part-time basis, would not agree to pay her the 

agreed-upon wage, and had not effected various renovations of the 

kitchen area as promised. The respondent therefore did not return to 

work at the restaurant. She also testified at the hearing that she had 

accepted no other employment since the termination of her work at the 

restaurant, and that she was willing to resume employment in her 

former position if that job were again offered to her. 

In Matter of Stevens, 12 I. & N. Dee. 694 (BIA 1968), we held that an 

applicant for adjustment of status under section 245 of the Act who was 

subject to the labor certification requirements of section 212(a)(14) of 

the Act, and who was no longer employed by the employer who had 

petitioned for the labor certification, was no longer in possession of a 

valid labor certification. The facts in the instant case fall directly within 

that holding. 

Respondent's counsel, however, cites to the line of cases in which we 

have held that an alien who has been accorded lawful permanent resident status on the basis of a labor certification secured abroad in good 

faith, and who has for various reasons failed to accept or retain the 

designated employment after his arrival in the United States, is not 

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subject to deportation for the lack of a valid labor certification. See 

Matter of Cardoso, 13 I. & N. Dec. 228 (BIA 1969); Matter of Marcoux, 

12 I. & N. Dec. 827 (BIA 1968); Matter of Klein, 12 I. & N. Dec. 819 

(BIA 1968). Counsel argues that we should extend the rationale of these 

cases to the present facts, and hold that an applicant for adjustment of 

status who, for justifiable reasons, has ceased the employment upon 

which her labor certification was based is nonetheless eligible for adjustment of status. For the following reasons, we decline to extend the 

rationale of these decisions to the facts of this case. 

Counsel would have us assimilate the female respondent in this case 

to the alien who has been accorded an immigrant visa overseas based 

upon a labor certification, and who has traveled to the United States 

only to find upon arrival that his offer of employment is no longer open, 

or that the employment is justifiably unsatisfactory. The analogy, however, is not well drawn. Counsel misperceives the position of an applicant for adjustment of status. An application for adjustment of status is 

assimilated to an application for an immigrant visa made to a consular 

officer abroad. Matter of Mirza, 11 I. & N. Dec. 756 (BIA 1966). While 

an applicant for adjustment of status is admittedly already present in 

the United States at the time of his application for an immigrant visa, 

such presence should not be allowed to place the applicant in a better 

legal position than one who applies for an immigrant visa overseas. To 

do so would reward those who, as in this case, have abused their 

nonimmigrant visas, or who have entered this country illegally, at the 

expense of those aliens overseas who desire admission but seek such 

admission in the legally prescribed manner. 

It is well settled that an applicant for admission overseas whose offer 

of employment, upon which his labor certification is based, has been 

withdrawn prior to the grant of an immigrant visa may no longer base 

his application on that labor certification. See Matter of Paco, 12 I. & N. 

Dec. 599 (BIA 1968). We decline to place the applicant for adjustment of 

status in a better position than one who applies for admission at an 

overseas consulate. We shall therefore affirm the validity of Matter of 

Stevens, supra, and hold that an applicant for adjustment of status no 

longer employed in the position for which his labor certification was 

granted is not eligible for an immigrant visa based upon that labor 

certification. Accordingly, the appeal of the female respondent will be 

dismissed. Since the application of the male respondent is directly 

dependent upon the success of the application of his wife, his appeal will 

also be dismissed. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: Pursuant to the immigration judge's order, the 

respondents are permitted to depart from the United States voluntarily 

N.vithin 30 days from the date of this order or any extension beyond that 

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time as may be granted by the District Director; and in the event of 

failure so to depart, the respondents shall be deported as provided in the 

immigration judge's order. 

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