Interim Thaeision #2288 

MATTER OF LAU 

In Deportation Proceedings 

A-19060170 

A-19082734 

Decided by Board May 17, 1974 

(1) Notwithstanding the precertification was obtained from a district director 

and not from a consular office abroad, respondent, a section 245 applicant for 

adjustment of status, wile in February 1569 obtained a labor certification as a 

master tailor under the Schedule C—Precertification List of the Department 

of Labor, but who was prevented from using it by the improper suspension of 

the Precertification List, comes within the rationale of Lewis Biota v. Secretary of Labor, 469 F.2d 478 (1972), which, in effect, held that the suspension 

was invalid until March 4, 1971. Therefore, respondent, who had a nonpreference priority date of at least July?, 1969, falls within the functional class of 

aliens entitled to the benefits of the Lewis-biota decision and implementing 

order which coml./Ilse precertified Western Hemisphere aliens with visa 

priority dates earlier than January 1, 1970, and precertified Eastern Hemisphere nonpreference aliens with visa priority dates earlier than April 1, 1970. 

Hence, an immigrant visa is immediately available to him, assuming he 

qualified for his labor percertification. 

(2) Notwithstanding the district director lacked authority under the regulations 

to determine on February 10, 1969, that respondent was precertified under 

Schedule C—Precertification List, since the precertification determination 

was made at a time when such action was contemplated by regulations not yet 

effective, and since the respondent evidently complied with the necessary 

requirements, he is considered to have been validly "precertified" as of March 

18, 1969, the date of publication of the Service regulations authorizing district 

directors to make precertification determinations. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Nonimmigrantremained longer than permitted (both aliens). 

DH BEHALF OF RESPONDENTS: Hiram W. Kwan, Esquire 

840 North Broadway 

Les Angeles, California 90012 

The alien respondents have appealed the January 3, 1973 decision of an immigration judge in which they were found deportable, 

vere denied adjustment of status under section 245 of the Immi694 
Interim Decision #2288 

gration and Nationality Act, and were granted the privilege of 

voluntary departure. The appeal will be sustained. 

The respondents, natives and citizens of China, are husband and 

wife. They have conceded deportability as nonimmigrants who 

have remained beyond the authorized length of their stays. Prior 

to the institution of these proceedings the respondents had applied 

for adjustment of status before a District Director. Those earlier 

applications were denied; however, the respondents renewed their 

requests for relief under section 245 at the hearing before the 

immigration judge. See 8 CFR 245.2(a)(4). The only issues on 

appeal involve these applications for adjustment of status. 

An alien may not be granted adjustment of status under section 

245 unless he establishes that he is statutorily eligible for the 

relief. In order to satisfy the basic statutory prerequisites the alien 

must demonstrate that he has been inspected and admitted or 

paroled into the United States, that he is eligible to receive an 

immigrant visa and admissible for permanent residence, and that 

an immigrant visa is immediately available to him at the time his 

application is approved. The respondents were inspected and 

admitted as nonimmigrants. They do not appear to be inadmissible 

under any of the "qualitative" provisions of the Act. Consequently, 

there eligibility for relief under section 245 depends on whether 

they qualify for the immigrant status which they seek, and 

whether immigrant visas are immediately available to them in 

that status. The respondents, as natives of an Eastern Hemisphere country, have sought adjustment of status as nonprefermce immigrants. There are two primary issues in this case: (1) 

whether the respondents have met the labor certification requirements of the Act for nonpreference status; and (2) whether 

immigrant visas are currently available to them in that status. 

At the hearing below the male respondent maintained that he 

was exempt from the labor certification requirements of section 

212(a)(14) as an investor within the contemplation of 8 CFR 

212.8(b)(4). The immigration judge apparently found that the male 

respondent had not adequately substantiated his claim to the 

investor exemption, and on that basis found the male respondent 

statutorily ineligible for adjustment of status. The female respondant was also found ineligible for section 245 relief because her 

ilaim was inextricably tied to that of her husband. Subsequent to 

he immigration judge's decision in this case the regulation gov-

?rning the "investor" exemption was amended. See 38 FR 1380 

January 12, 1973), 38 FR 8590 (April 4, 1973). The Service will now 

?valuate any claim made prior to the amendment under which-

?ver version of the regulation is most favorable to the alien. Matter 

),f :17o, Interim Decision No. 2201 (Dep. Assoc. Comm. 1973); see also 

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Matter of Heitland, Interim Decision No. 2259 (BIA 1974). The male 

respondent's assertions regarding the amount of his investment 

would appear to bring him within the terms of the present version 

of 8 CFR 212.8(b)(4). However, the male respondent's proof as to 

the amount of his investment is less than satisfactory. Accordingly, we concur in the finding that the male respondent has failed 

adequately to substantiate his investor claim. 

The male respondent has raised another question on appeal 

regarding his satisfaction of the labor certification provisions of 

the Act. He basically contends that he should be found statutorily 

eligible for adjustment of status because he had obtained labor 

certification under the Schedule C—Precertification List of the 

Department of Labor, but was prevented from utilizing his precertification in seeking adjustment of status by the improper suspension of the precertification list. 

Section 212(a)(14) of the Act basically precludes the issuance of 

visas to certain aliens, including nonpreference immigrants, who 

seek to enter the United States for the purpose of performing 

skilled or unskilled labor, unless the Secretary of Labor has 

certified that: (A) at a given alien's proposed destination there are 

insufficient United States workers able, willing, qualified and 

available for employment in the alien's field; and (B) the alien's 

employment will not adversely affect the wages and working 

conditions of similarly employed United States workers. As an aid 

in the certification process, the Secretary of Labor has published 

schedules which list various occupation categories. Schedule C, 

which was incorporated into 29 CFR Part 60 on February 1, 1967, 1 

 set forth a list of occupations which were found to be in short 

supply generally, but not nationwide. Initially, an alien employed 

in one of the listed occupations and destined for a geographic 

area where his occupation was in short supply was eligible for an 

individual labor certification without demonstrating that he had a 

specific job offer. See 8 CFR 212.8(c)(4) (1968), 32 FR 852 (January 

25, 1967), deleted, 34 FR 5326 (March 18, 1969). The Schedule C 

which appeared in 29 CFR Part 60 was revoked effective March 1, 

1969, and a new Schedule C—Precertification List was established? The Schedule C—Precertification List was not published in 

the Federal Register; however, copies of the list were available 

from the Department of Labor which maintained and continually 

32 Fed. Reg. 867 (January 25, 1967). 

234 Fed. Reg. 1018 (January 23, 1969). 

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reviewed the list? The Department of Labor regulations governing precertification provided that "Consular offices abroad and 

Immigration and Naturalization Service offices will be notified 

that any alien whose occupation is described in such Schedule CPrecertification List and whose intended place of residence is not 

excluded from precertification is certified under section 212(aX14) 

of the Immigration and Nationality Act." 4As with the original 

Schedule G, an alien qualifying under the Schedule C—Precertification List did not need to establish that he had a specific job offer 

in the United States. 

The Schedule C—Precertification List was suspended by the 

Secretary of Labor on February 9, 1970. An indication of the 

suspension was finally published in the Federal Register on 

February 4, 1971,6when 29 CFR Part 60 was revised and the 

Schedule C—Precertification List was eliminated. The earlier unannounced suspension of the Schedule C—Precertification List 

was successfully attacked in Lewis-Mota v. Secretary of Labor, 469 

F.2d 478 (C.A. 2, 1972). 

Lewis-Moto, was a class action instituted by aliens who had 

received labor precertifications endorsed by United States consular officials. The court determined that the suspension of the 

Schedule C—Precertification List was invalid until 30 days after 

notice of the suspension had actually been published in the 

Federal Register. The district court order implementing the court 

of appeals decision benefits aliens whose precertification determinations were adjudicated by consular officials, and who had 

priority positions for the issuance of immigrant visas which would 

have been reached by March 4, 1971. 6Qualifying aliens are to be 

given two years from June 11, 1973, the date of the district court 

order, in which "to request appointments to apply for immigration 

3 The Schedule C—Precertification List appears to have included all but 24 of 

the occupations originally published in Schedule C. See Department of State 

Airgram No. A-6857 (August 9, 1973). Pertinent portions of Airgram No. A-6857 

have been reprinted by the American Council for Nationalities Service in Interpreter Releases, Vol. 50, No. 37, September 4, 1973. The Immigration and 

N aturalization Service has provided us with a copy of Airgram Nu. A-0857. 

4 29 CFR 60.3(c) (1970), 34 FR 1018 (January 23, 1969). 

5 36 FR 2462. 

6 The United States Court of Appeals for the Second Circuit declared the 

suspension of the precertification list invalid until 30 days after February 4, 

1971, the date on which the Schedule C—Precertification List was eliminated by 

the revision of 29 CFR Part 60. On remand the district court held the suspension 

invalid until March 4, 1971, but valid thereafter. Since the month of February 

1971 had only 28 days, there would appear to be a slight discrepancy between 

these two decisions. 

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visas," and thus retain their precertifications and priority dates. 

Lewis-Mota v. Secretary of Labor, Civil No. 71 Civ. 469 MP 

(S.D.N.Y. June 11, 1973). The Visa Office for the Department of 

State has determined by extrapolation that the class of persons 

benefited by the Lewis-Mota decision would comprise precertified 

Western Hemisphere aliens with visa priority dates earlier than 

January 1, 1970, and precertified Eastern Hemisphere nonpreferenee aliens with visa priority dates earlier than April 1, 1970. 7 

Exhibit 2 of the record contains a form which indicates that the 

male respondent was found to be precertified as a Master Tailor on 

February 10, 1969. This determination appears to have been made 

by a district office of the Immigration and Naturalization Service 

and not by the Department of Labor. The male respondent's 

precertification was not endorsed by a United States consular . 

precise class of official; consequently, he does not fall within the 

aliens benefited by the district court order in Leuns-Mota. Furthermore, there is some question as to whether the District Director 

had authority to determine Schedule C precertifications in February of 1969. 

On the date that the male respondent was found to be precertified, the applicable Service regulations required that information 

regarding an alien claiming to fall within Schedule C be forwarded 

to the Department of Labor for actual issuance of the labor 

certification. 8 CFR 212.8(c)(4) (1969), 32 FR 852 (January 25, 1967); 

8 CFR 245.2(b)(1) (1969), 32 FR 853 (January 25, 1967). However, 

prior to February 10, 1969, the Department of Labor had published 

the new regulations governing the Schedule C—Precertification 

List. These new regulations became effective on March 1, 1969, 8 

was subsequent to the District Director's precertification which 

determination in this case. Shortly after the February 10, 1969 

date, the Service regulations were amended to permit district 

directors to determine whether an alien was precertified under the 

Schedule C—Precertification List. 8 CFR 204.1(dX2) (1970, 34 FR 

5325 (March 18, 1969); 8 CFR 245.2(b)(1) (1970), 34 FR 5326 (March 

18, 1969). Although in a sense "obsolete," it was the individual 

certification procedure which technically governed when the male 

respondent was found to be precertified. Consequently, the District Director's precertification determination appears to have 

been made at a time when such action was contemplated by 

regulations not then effective . 8 

7Department of State Airgram No. A-6857, supra, footnote 3. 

a 24 FR 1018 (January 22, 1060). 

9There is no indication in the announcements of these regulations that a 

formal directive authorizing this procedure was previously issued to the district 

offices. 

4 

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Interim Decision #2288 

Nevertheless, the male respondent evidently complied with ev-

?ry requirement placed upon him during this period of time. 

Accordingly, we shall consider the male respondent to have been 

validly found "precertified" on March 18, 1969, the date of publication of the Service regulations authorizing district directors to 

make precertification determinations. 10This, then, is the date on 

which we deem him to have "obtained a certification under section 

212(a)(14) of the Act ...." 8 CFR 204.1(d)(2) (1970), 34 FR 5325 

',March 18, 1969). 

As noted earlier, the male respondent does not fall within the 

precise class of aliens benefited by the district court order in 

Lewis-Motet, v. Secretary of Labor, Civil No. 71 Civ. 469 MP 

;S.D.N.Y. June 11, 1973). However, the basic holding of the United 

States Court of Appeals for the Second Circuit was that the 

suspension of the Schedule C—Precertification List was not valid 

until 30 days after notice of the suspension was published in the 

Federal Register. Levrig-ltinto. v. Secretary of Labor, 469 F.2d 478 

:C.A. 2, 1972). The only appearent distinction between the male 

respondent and the class of aliens benefited by the district court 

order is that the male respondents precertification was endorsed 

by a district director of the Service, and not by a United States 

consular official. We can perceive no sound reason for refusing to 

apply the terms of the district court order to the male respondent. 

[here is no functional difference between his situation and that of 

aliens found to be precertified by consular officials. Accordingly, as 

nonpreference immigrant from the Eastern Hemisphere, the 

nale respondent will be entitled to retain his precertification and 

ie eligible for the issuance of an immigrant visa if: (1) he had a 

ziority date earlier than April 1, 1970; (2) he did in fact qualify as 

Master Tailor under the Schedule C—Precertification List; and 

3) he is not otherwise inadmissible. 

The record in this case does not entirely explain the immigration 

iistory of the male respondent; however, it appears that he 

3stablished a priority date for the issuance of an immigrant visa in 

luly of 1969. Exhibit 2 of the record contains the male respondmt's application for adjustment of status (Form 1-485). The 

xpplieation, with fee paid, was received by the Service no later 

;han on July 7, 1969. 

The pertinent portion of 8 CFR 245.1(g), in effect as of that filing, 

;tated: 

The priority date of a nonpreference applicant shall be fixed by the 

following factors, whichever is the earliest: ... (2) the date on which application Form 1-485 is filed, if the applicant establishes that the provisions of 

10 34 Fed. Reg. 5325. 

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section 212(a)(14) of the Act do not apply to him or that he is within the 

Department of Labor's Schedules A or C—Precertification List (29 CFR Part 

60) .11 

Since the male respondent had obtained a labor certification 

pursuant to the Schedule C—Precertification List, his filing of the 

Form 1-485 established a nonpreference priority date in accordance with this regulation 32 

Having had a priority date of at least July 7, 1969, the male 

respondent falls well within the functional class of aliens entitled 

to the benefits of the Lewis-Mote decision and the implementing 

order. Accordingly, an immigrant visa is immediately available to 

the male respondent, assuming he qualified for his labor precertification. 

The record at present therefore indicates that the male respondent is statutorily eligible for adjustment of status. The case must 

be remanded, however, fur a determination as to whether the male 

respondent's representations concerning his qualifications for 

Schedule C—Precertification were factually correct, 13as to 

whether he is otherwise admissible, and as to whether discretion 

should be favorably exercised in his behalf. Since the availability 

of adjustment of status to the female respondent depends upon 

the case of her husband, we shall also remand her case. 

ORDER: The appeal is sustained and the records are remanded 

for further proceedings in accordance with this opinion. 

1134 FR 5326 (March 18, 1969). 

" The Service cumidered the male respondent to be eligible for adjustment of 

status as a sixth preference immigrant; nevertheless, on the date of his filing he 

demonstrated eligibility for a nbnpreference visa in conformity with this regulation. He is presently a nonpreference applicant and may avail himself of the 

nonpreference priority date established earlier. 

13The immigration judge may not rule on the accuracy of the District 

Director's conclusions regarding the sufficiency of the stated qualifications for 

precertification. Matter of Grave, 13 I. & N. Dec. 572 (BIA, 1970). On remand, the 

inquiry in this regard must be limited to whether the male respondent actually 

had the work experience and training which he claimed at the time of the 4 

precertification determination. See Matter of Belmares-Carrillo, 13 I. & N. Dec. 

195 (BIA, 1969); Matter of Hernandez-Uriarte, 13 I. & N. Dec. 199 (BIA, 1969). 

700