Interim Decision #2046 

MATTER, OF GROVE 

In Deportation Proceedings 

A-14597358 

Decided by Board March ,27, 1970 

The special inquiry officer does not have authority to rule upon the qualifications of respondent (a nonpreference applicant for section 245 adjustment of status) fur precertilicativn under Schedule C of 29 CFR 60.3, 

since, by regulation, such authority lies solely with the District Director. 

CHARGE : 

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

longer than permitted after admission as nonimmigrant visitor under section 101(a) (15). 

ON BEHALF OF RESPONDENT: 

Robert T. Reynolds, Esquire 

Snyder and Reynolds 

1000 National Press Bldg. 

14th & F Streets, N.W. 

Washington, D.C. 20004 

Of counsel: 

Ronald R. Bonaparte, Esquire 

3600 Wilshire Blvd. 

Los Angeles, California 90005 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

The respondent is a native and citizen of New Zealand who 

was admitted to the United States at the port of Honolulu, Hawaii on or about June 16, 1965 as a nonimmigrant visitor for 

pleasure. She has been found deportable under the provisions of 

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

alien who remained longer than permitted. An order entered by 

the special inquiry officer on May 26, 1966 granted her the privi-

, ege of voluntary departure with an alternate order of deportation in the event she failed to depart when and as required. There 

was no appeal from this order. A warrant for the respondent's 

leportation was issued on May 15, 1969. 

The respondent on May 26, 1969 moved for a reopening of the 

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Interim Decision #2046 

deportation proceedings to permit application for adjustment of 

status under section 245 of the Immigration and Nationality Act. 

An order entered by the special inquiry officer on July 25, 1969 

denied this motion. The appeal from this order is now before us. 

The special inquiry officer denied the respondent's motion on 

the ground that the respondent was ineligible to apply for an adjustment of status under section 245 (a) (3) of the Act since there 

was no showing that an immigrant visa was immediately available for her (8 CFR 245.2 (a) (2)). The special inquiry officer also 

found that the respondent could not qualify as a nonpreference 

alien by reason of the fact that "it has been determined by the 

District Director that she is not entitled to be considered under 

the precertified list of occupations under 29 CFR, Part 60, and 

she does not possess an individual certification of the Secretary of 

Labor issued under section 212(a) (14) of the Act, as required 

under the provisions of 8 CFR 245.2(b) (2)." The District Director at Los Angeles ruled on July 2, 1969 that the petitioning employer's request for the respondent's employment as a secretary 

would not be approved because the respondent did not meet the 

two-year training period required for precertification under 

Schedule C. 

Counsel on appeal urges error on the part of the special inquiry officer in that he failed to review the evidence to determine 

whether the respondent was qualified as a secretary and, therefore, entitled to precertification under 29 CFR 60.3. He argues 

that the broad authority granted the special inquiry officer by 8 

CFR 242.8(a) 1is adequate to permit consideration of the respondent's qualifications for precertification under 29 CFR 60.3. 

We do not agree. 

Under 8 CFR 245.1 (e) the burden is upon the respondent to establish that she is within Schedule C of the precertified list set 

forth in 29 CFR, Part 60. 8 CFR 245.2 (b) is the regulation which 

governs an application by a nonpreference alien seeking an adjustment of status under section 245 of the Act and whose occupation is included in Schedule C of the precertified list set forth 

in 29 CFR 60.3. It reads in part: 

1 8 CFR 242.8(a) provides in part: "In any proceeding conducted under 

this part the special inquiry officer shall have the authority to determine deportability and to make decisions, including orders of deportation as provided by section 242(b) of the Act; ... to determine applications under sections 244, 245 and 249 of the Act; . . . and to take any other action 

consistent with the applicable provisions of the law and regulation as may 

be appropriate to the disposition of the case." (Emphasis supplied.) 

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Determination concerning certification under section 212(a) (14) of the Act 

will be made in accordance with the pertinent provisions of section 

204.1(d) (2) of this Chapter. 

The pertinent provisions of 8 CFR 204.1 (d) (2) read: 

An alien whose occupation is currently listed in Schedule C—Precertification List—will be considered as having obtained a certification under section 

212 (a) (14) of the Act upon determination by the District Director that the 

alien is qualified for and will be employed in such occupation and that the 

alien will not reside in an area excluded from precertification by the Secretary of Labor. (Emphasis supplied.) 

We conclude on the basis of the foregoing regulations that the 

special inquiry officer does not have the authority to rule upon 

the respondent's qualifications for precertification under Schedule 

C of 29 CFR 60.3. This authority lies solely with the District 

Director. We affirm the action taken by the special inquiry officer 

in denying the respondent's motion and will dismiss the appeal. 

ORDER: It is directed that the appeal be and the same is 

hereby dismissed. 

574