.i.merun IJCCIWA.PLI yr Z.VL.0 

MATTER OF LAM 

In Deportation Proceedings 

A-21068985 

Decided by Board January 6, 1978 

The fact that a labor certification depends upon qualifying experience gained through 

unauthorized employment in the United States would not in itself justify refusal to 

grant adjustment of status in the exercise of discretion, where the employment has been 

determined to be of potential benefit to the United States because of a shortage of 

United States workers. Matter of Leung, Interim Decision 2530 (D.D. 1976) and Matter 

of Yarden, Interim Decision 2513 (R. C. 1976) are disapproved. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2), I. & N. Act, [8 U.S.C. 1254*(2)1— 

Nonimmigrant visitor—remained longer than permitted 

ON BEHALF OF RESPONDENT: Winston W. Tsai, Esquire 

Suite 1022 

1028 Connecticut Avenue 

Wabliingtva, D.C. 20030 

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

This is an appeal from the immigration judge's denial of the relief of 

adjustment of status in a decision entered on February 3, 1977, in which 

the immigration judge granted to the respondent the privilege of voluntary departure. The appeal will be sustained. 

The record relates to a married male alien, 40 years of age, who is a 

native and citizen of China. He was admitted to the United States on 

February 6, 1978, as a nonimmigrant visitor. He was originally found 

deportable in an earlier decision by the immigration judge on January 

12, 1976. The finding of deportability rested on the respondent's admissions. The respondent did not appeal from that decision. He thereafter 

obtained reopening of the proceedings in order to apply for adjustment 

of status. This appeal is brought from the immigration judge's subs equent denial of that relief. 

The respondent is a specialty cook of Chinese style food. He has been 

employed as a Chinese cook by the China Shoppe Restaurant in Maryland from May 1976 to the present time. He was previously employed by 

tie Red Blazer Restaurant from January 1976 to April 1976 in New 

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York, by the Horse River Restaurant in Maryland from May 1974 to 

December 1975, and by the Oriental Garden Restaurant in Virginia 

from April 1973 to April 1974. The China Shoppe ReStaurant filed a 

labor certification application on behalf of the respondent, which was 

approved on April 15, 1976. A sixty-preference petition filed by the 

China Shoppe Restaurant on behalf of the respondent was approved on 

June 30, 1976. 

On the labor certification application the China Shoppe Restaurant 

specified that two years experience was required for the position offered. All of the qualifying experience shown by the respondent' in 

support of the labor certification was gained in the United States as 

listed above. At his deportation hearing the respondent testified that his 

sole experience as a cook prior to coming to the United States consisted 

of part-time work of about ten hours a week for several months during 

1970 (Tr. p. 6). Inasmuch as that experience did not amount to the two 

years of experience required by the United States employer, the respondent's eligibility for a labor certification must necessarily depend 

upon the experience he gained while in the United States. 

Because the respondent's qualifying employment experience was 

gained while he was here as a nonimmigrant visitor and later ai an 

overstay, the immigration judge declined to exercise his discretion 

favorably to the respondent and denied him adjustment of status. The 

issue posed is whether the fact that qualifying experience for a labor 

certification was gained by employ-ment which was not authorized under 

the immigration laws constitutes a factor adverse to the exercise of 

discretion, when considering an application for adjUstment of status. 

We have previously considered the general issue in the case of /Matter 

of Arai, 13 I. & N. Dec. 494 (BIA. 1970). Arai, like the present respondent, sought adjustment of status on the basis of an approved labor 

certification as a specialty cook. In that ease, as in this, no finding was 

made by the immigration judge that the respondent was other than a 

bona fide visitor when he first arrived in the United States. The immigration judge, however, considered Arai's taking of employment as an 

adverse factor. We reversed the immigration judge and held that the 

case presented no adverse factors affecting the respondent's application. We characterized the employment as a potential benefit to the 

United States inasmuch as there was a shortage of United States 

workers in his field of employment. The Labor Department, by certifying the application, had so determined. 

In the case before us the immigration judge, in declining to exercise 

discretion favorably, focused on the fact that the unauthorized employment was crucial to eligibility for the labor certification, rather than on 

the fact that the employment was unauthorized. While the focus is thus 

somewhat different from Arafs case, the immigration judge's considera433 
interim .uecision #zorts 

tion of the employment as an adverse factor is nonetheless inconsistent 

with the decision in Matter of Arai, supra. Inasmuch as the recitation of 

facts in Arai did not specify to the contrary, we must assume that Arai's 

work experience in the United States was crucial to his labor certification, as was the respondent's. The immigration judge's decision below 

that approval of a labor certification should be disregarded in the exercise of discretion when the experience was gained in the United States 

by means of unauthorized employment cannot, therefore, be reconciled 

with the decision in Matter of Arai, supra. 

When a labor certification has been granted concerning employment, 

it has been determined that the employment is not detrimental to the 

United States labor market. An important concern of our immigration 

laws is the protection of our domestic economy. Taking unauthorized 

employment in violation of law may be an adverse discretionary factor. 

However, this is offset when unauthorized employment is not detrimental, and is in fact of potential benefit to our country, in view of the 

shortage of United States workers. In this case not only has a labor 

certification been granted for the employment, but a sixth-preference 

petition as well. 

We are aware that the Service has previously addressed the same 

issue in two cases and has held that discretionary relief should be denied 

to an alien in the above circumstances in the absence of unusual or 

outstanding equities. Matter of Leung, Interim Decision 2530 (D.D. 

1976). 1 Matter of Yarden, Interim Decision 2513 (R. C. 1976) (dicta). The 

facts in Matter, of Leung, supra, were very similar to those in this case. 

In that case as in this, the respondent was issued a labor certification 

and accorded sixth-preference status on the basis of experience as a 

specialty cook, which experience had been acquired while in the United 

States, after admission as a nonimmigrant visitor for pleasure_ 

Neither Service decision, however, makes reference to the decision of 

Matter of Arai, supra. While the immigration judge's decision below 

does cite Arai for its enunciation of the general standard for the exercise 

of discretion, it does not mention that the result reached is directly 

contrary to the result reached in Arai. The decision below and those of 

Leung and Yarden did not attempt to distinguish Arai, and in our view 

are inconsistent with Anti. Accordingly, we disapprove of the Service's 

decisions in Matter of Yarden, supra, and Matter of Leung, supra. 2 

' "In the absence of unusual or outstanding equities, an alien will not as a matter of 

administrative discretion be accorded permanent resident status on the basis of a labor 

certification issued under section 212(a)(14) of the Immigration and Nationality Act, 

"where the labor certification is predicated upon employment while unlawfully in the 

limited States." Matter of Leung, supra. 

We note that the issue may be mooted to some extent by the Immigration and 

Nationality Act. Amendments of October 20, 1076, which took effect on January 1, 1977, 

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The respondent has established visa availability and appears to be 

otherwise qualified for the requested relief. 

ORDER: The appeal is sustained and the respondent is granted 

adjustment of status subject to necessary processing by the Service. 

FURTHER ORDER: The outstanding order of deportation is withdrawn. 

(Public Law 94-571, 90 Stat. 2703). Section 245 of the Act as amended now ,provides' rovides that 

the relief of adjustment of status is not available to: 

. . . an alien (other than an immediate relative as defined in sections 201(b)) who 

hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status. Section 245(c)(2). 

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