Interim Decision #2590 

MATTER O1 DACANA Y 

In Deportation Proceedings 

A-20972362 

A-20972365 

Decided by Board June 3, 1977 

(1) Respondents were authorized to accept employment at St. John's Hospital in Detroit. 

Subsequently, and in violation of their authorized employment, they accepted employment at another hospital prior to the approval of visa petitions submitted by the second 

hospital in their behalf. The Service approved those petitions January 24, 1975, and 

authorized respondents to remain until January 23, 1976. 

(2) Deportation proceedings were instituted under section 241(a)(9) of the Immigration 

and Nationality Act alleging respondents had violated their nonimmigrant status by 

accepting employment at the second hospital before approval of their visa petitions. 

(a) A visa petition filed on Form I-129B on behalf of an alien already in the United States 

in a nonimmigrant classification defined in section 101(a)(15)(H) of the Act may be 

adjudicated only as an application for extension of stay either to continue the same 

employment or training previously authorized or to undertake different employment or 

training. The approval by the Service of the Forms I-129B filed by the second hospital 

on January 24, 1975, operated to authorize an extension of the stay of respondents and 

inferentially affirm the continuing legality of their nonimmigrant status. For that reason 

the orders to show cause should not have been issued, and the proceedings will be 

terminated. • 

CHARGE: 

Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9))—Noninunigrants--failed to 

comply with conditions of status 

ON BEHALF OF RESPONDENTS: Ernest Sosnick, Esquire 

Popkirk, Shamir & Greenberg, Inc. 

5670 Wilshire Boulevard 

Suite LSOO 

Lus Arageles, Califuruia 90036 

Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members 

In a decision dated March 19, 1S75, an immigration judge found the 

respondents, husband and wife, deportable under section 241(a)(9) of 

the Immigration and Nationality Act, for failure to comply with the 

conditions of their status, and granted them the privilege of voluntary 

d eparture by May 17, 1975, in lieu of deportation to the Republic of the 

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Philippines. The husband alone has appealed from that decision in 

submitting his Notice of Appeal (Form I— 290A), dated March 26, 1975, 

through previous counsel. Inasmuch as the Service and new counsel 

treat the appeal as though the wife had appealed also, we will take 

jurisdiction of her case on certification in accordance with 8 C.F.R. 

3.1(c). 

The respondents, natives and citizens of the Republic of the Philippines, were admitted to the United States on July 10, 1972, and August 

5, 1972, respectively. Under Section 1_01(a)(15)(H)(i), they were authorized employment at St. John's Hospital, Detroit, Michigan, until 

May 17, 1975, and May 4, 1975, respectively. 

In violation of their authorized employment, the respondents accepted employment at the David Brotman Memorial Hospital in Culver 

City, California, on November 18, 1974, and December 2, 1974, respectively. They commenced such employment prior to the approval of visa 

petitions submitted by the David Brotinan Memorial Hospital on their 

behalf. The visa petitions were approved on January 24, 1975, for their 

new employment and they were authorized to remain until January 23, 

1976 (counsel's brief p. 1). 

At the hearing the respondents admitted the allegations contained in 

the Order to Show Cause, however, they denied deportability (Tr. p. 3). 

Section 101(a)(15)(17)(i), pertains to an alien having a residence in a 

foreign country, which he has no intention of abandoning, who is of 

distinguished merit and ability and who is coming temporarily to the 

United States to perform temporary services of an exceptional nature 

requiring such merit and ability. 

The employment of nonimmigrants, including temporary workers, is 

also governed by regulations. The pertinent portion of 8 C.F.R. 214.1(c) 

states: 

A nonimmigrant who is permitted to engage its employment may engage only in such 

employment as has been authorized. Any unauthorized employment by a nonimmigrant 

conAtitutps a failure to maintain status within the meaning of section 241(a)(9) of the 

Act. 

Additionally, 8 C.F.R. 214.2(h)(1) provides: 

If an alien in the United States desires to perform temporary services for another 

petitioner, a new petition on Form 1-129B must be submitted, and if the petition is 

approved, an extension of stay may be granted. . 

The respondents were authorized employment at St. John's Hospital, 

Detroit, Michigan. Initially they were not authorized employment at 

David Brotman Memorial Hospital in Culver City, California; authorization was not obtained until some 10 -weeks after employment commenced. 

The Service, however, in its motion for termination, dated May 19, 

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1977, requests that these deportation proceedings be terminated inasmuch as they were improvidently begun. 

It is the Service position that a visa petition filed on Form 1-12913 in 

behalf of an alien or aliens already in the United States in the noninunigrant classification defined in Section 101(a)(15)(H), may be adjudicated 

only as an application for extension of stay either to continue the same 

employment or training or to undertake employment or training different from that previously authoriied. The approval of Forms 1-1293 in 

these cases on January 24, 1975, had the effect of extending the stay of 

the respondents and of inferentially affirming the continuing legality of 

their noninunigrant status. The Service contends the Orders to Show 

Cause should not have been issued. 

On the basis of the foregoing we will grant the Service Motion for 

Termination. Matter of Vizcarra-Delgadillo, 13 I. & N. Dec. 51 (BIA 

1968). Accordingly, the proceedings will be terminated. 

ORDER: The deportation proceedings against the respondents are 

terminated. 

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