Interim Decision #2734 

MATTER OF SAEKOW 

In Deportation Proceedings 

A-20940166 

Decided by Board October 11, 1979 

(1) By virtue of a Service instruction issued on July 18, 1977, an alien who is the 

beneficiary of a visa petition filed before January 10, 1977, and who could have properly 

filed an application for adjustment of status under section 245 of the Immigration and 

Nationality Act, 8 U.S.C. 1255, with that visa petition pursuant to 8 C.P.R. 245.2(a)(2), 

may presently file his adjustment application without being affected by the 

unauthorized employment bar of section 245(c)(2) of the Act, 8 U.S.C. 1255(0(2). 

(2) Pursuant to 8 C.F.R. 204.1(cX2), the "filing date" of a third or sixth-preference visa 

petition is considered, for the purpose of allocating immigrant visa numbers, to be the 

date the underlying labor certification application was accepted for processing by the 

Labor Department. 

(3) An alien who engaged in unauthorized employment after January 1, 1977, and prior 

• to filing his application for adjustment of status is not exempted from the 

unauthorized employment bar of section 245(c)(2) by the Service instruction of July 18, 

1977, as "the beneficiary of a visa petition filed before [January 10, 1977] " where his 

sixth-preference visa petition was actually submitted after that date, notwithstanding the fact that the visa petition reflects a September, 1976, filing date by reason of 8 

C.F.R. 204.1(c)(2); the fictional relation -back filing date established by that regulation 

does not bring an alien within the ambit of the instruction. 

(4) The respondent must be presumed to have been put on notice by the enactment in 

October of 1916 of the 1976 Amendments to the Immigration and Nationality Act, Pub. 

L 94-571, 90 Stat. 2703 (effective January 1, 1977), that continuing in unauthorized 

employment after the effective date of the amendments would cause him to become 

ineligible for adjustment of status. 

(5) The respondent's present ineligibility for adjustment of status is a direct result not 

of Service regulations which allegedly permit the filing of an adjustment application 

only before an immigration judge on the actual date of the deportation hearing once 

an Order to Show Cause has been issued and thus precluded him from filing as a 

nonpreference applicant upon the issuance of his labor certification in November of 

1976 (8 C.F.R. 242.17(d) and 245.2(a)(1)) but, instead, of his having engaged in 

unauthorized employment after January 1, 1977, prior to filing that application. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant 

visitor—remained longer than permitted 

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ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Edwin Kroin, Esquire George W. Masterton 

225 Broadway Appellate Trial Attorney 

New York, New York 10007 

BY: Milhollan, Chairman; Maniatio, Appleman, Maguire, and Farb, Board Members 

In a decision dated March 14, 1978, an immigration judge found the 

respondent deportable as an overstay pursuant to section 241(a)(2) of 

the Immigration and Nationality.Act, 8 U.S.C. 1251(a)(2), denied his 

applications for suspension of deportation and adjustment of status 

under sections 244(a)(1) and 245 of the Act, respectively, 8 U.S.C. 

1254(a)(1) and 1255, but granted him the privilege of voluntary departure in lieu of deportation. Deportability has been conceded and the 

only issues on appeal concern the denial of the respondent's applications for discretionary relief under sections 244(a)(1) and 245. The 

appeal will be dismissed. 

The respondent is a 29 -year-old single male, a native and citizen of 

Thailand, who entered the 'United States in December of 1969 as a 

nonimmigrant student authorized to remain in this country until 

October 10, 1973. He remained longer than permitted. An Order to 

Show Cause was issued on June 28, 1974, and deportation hearings 

were conducted on August 11, 1977, and on March 14, 1978. 

ELIGIBILITY FOR ADJUSTMENT OF STATUS 

On November 9, 1976, the respondent was issued a labor certification 

predicated upon his employment as a specialty cook, giving him a 

nonpreferenee priority date of September 29, 1976, the date his application for the labor certification was accepted for processing by the 

Labor Department. 8 C.F.R. 245.1(g)(2); 22 C.F.R. 42.62(b)(1) and 

Volume 9, Foreign Affairs Manual, Part III, 22 C.F.R. 42.62, note 1.3. 

Although the nonpreference quota to which the respondent is chargeable was current in November of 1976 and a visa was thus immediately 

available to him, the respondent did not then file an application for 

adjustment of status.' 

On an unspecified date subsequent to the March 1978 deportation 

hearing, the respondent's certified employer submitted a sixth-preference visa petition on his behalf which was approved by the District 

Director in June of 1978. By virtue of 8 C.F.R. 204.1(c)(2); the approved 

' See 8 C.F.R. 245.1(g)(1), revised as of January 1, 1976. In order to qualify for 

adjustment of status under section 245, an alien must apply for adjustment, establish 

that he is eligible to receive an immigrant visa and is admissible to the United States for 

permanent residence, and that an immigrant visa is immediately available to him. 

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Interim Decision #2734 

visa petition reflects a filing date of September 29, 1976, the date the 

labor certification application was accepted. for processing, notwithstanding the fact that the visa petition was not actually submitted to 

the Service until after March 14, 1978. The respondent's priority date 

for a sixth-preference visa in turn became the filing date of the approved visa petition, September 29, 1976. 8 C.F.R. 245.1(g)(2); 22 C.F.R. 

42.62(a). 

The respondent has been employed by his certified employer since 

July of 1975. The immigration judge concluded that the respondent 

was thereby precluded from adjusting his status by reason of section 

245(c) of the Act, 8 U.S.C. 1255(c), as amended, 2which excludes from 

the benefits of section 245: 

... (2) an alien (other than an immediate relative as defined in section 201(b) of this 

title) who hereafter continues in or accepts unauthorized employment prior to filing 

an application for adjustment of status ... 

The respondent concedes that he continued working for his certified 

employer after January 1, 1977, the effective date of the section 

245(e)(2) bar, and prior to filing an adjustment application; he does not 

contend that he ever obtained permission from the Service to engage in 

that employment' The respondent nevertheless insists that notwithstanding his employment, he is not precluded by section 24.5(c)(2) from 

establishing statutory eligibility for adjustment of status. The respondent advances alternative arguments in support of his contention. 

Argument 1 

The respondent maintains that he is within the class of aliens 

exempted from the bar of section 245(c)(2) by an instruction which the 

Central Office of the Immigration and Naturalization Service issued to 

all field offices on July 18, 1977. The instruction provides: 

Because of numerous allegations that Service offices last January and before improperly discouraged and refused the filing of adjustment applications submitted 

simultaneously with visa petitions, the following instruction is issued effective immediately, and regulations will be amended to reflect them: On or before December 30, 

1977,' an alien may file an adjustment application and have it adjudicated under the 

law and regulations as they existed on January 9, 1977, provided that the alien has 

been in the United States since prior to January 10, 1977, is the beneficiary of a visa 

petition filed before that date which has been or will be approved, and could under 8 

O.F.R. 245.2(a)(2) have properly filed an application for adjustment with that visa 

petition. Any alien so filing an application for adjustment may be deemed to have 

authorization to accept employment as of the date the visa petition was filed. 

21976 Amendments to the Immigration and Nationality Act, Pub. L. 94-571, 90 Stat. 

2703 (affective January 1, 1977). 

' The issuance of the respondent's labor certification in November of 1976 did not 

operate to authorize his employment. Matter of Raol, 16 I&N Dec. 466 (BIA 1978). 

The December 30, 1977, deadline was eliminated by a subsequent Service instruction. 

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Thus, an alien who is the beneficiary of a visa petition filed before 

January 10, 1977, and who could properly have filed an application for 

adjustment of status with that visa petition pursuant to the 

simultaneous filing provisions of the regulations then in effects may 

presently file his adjustment application without being affected by the 

unauthorized employment bar. See Matter of Cheng, 16 I&N Dec. 386 

(Br A 1977). 

At issue is the interpretation to be accorded the term "filed" within 

the phrase in the Service instruction "... is the beneficiary of a visa 

petition filed before that date .... " Inasmuch as his visa petition 

reflects a filing date of September 29, 1976, the respondent argues he 

qualifies for the benefits of the instruction as the beneficiary of a visa 

petition filed before January 10, 1977. The Service, on the other hand, 

has taken the position that the term "filed" in the instruction was 

intended to be synonymous with "submitted" and that the date the 

visa petition was actually submitted controls whether an alien qualifies for the benefits of the instruction. The Service accordingly 

maintains that the fictional relation-back filing date established by S 

C.F.R. 204.1(c)(2) does not operate to bring an alien within the ambit of 

the instruction. We agree with the position of the Service and hold that 

the date the visa petition was in fact submitted, rather than the filing 

date shown on the face of the petition by virtue of 8 C.F.R. 204.1(c)(2), 

determines whether an alien is exempted by the instruction from the 

bar of section 245(c)(2). 

We note at the outset that the regulation in issue, 8 C.F.R. 

204.1(c)(2), does not purport to relate back for all purposes the filing 

date of third and sixth-preference visa petitions to the date the underlying labor certification application was accepted for processing by the 

Labor Department. On the contrary, the regulation is explic-itly selflimiting, proving in pertinent part: 

(2) Filing date. In the case of a third or sixth-preference petition ... the filing date of 

the petition within the meaning of section 203(c) of the Act shall be the date the 

request for certification was accepted for processing by any office within the employment service system of the Department of Labor ... (Emphasis added.) 

Section 203(c) of the Act, 8 U.S.C. 1153(c), sets forth the order of 

allocating immigrant visas. The object of the regulation is manifest—

to place beneficiaries of approved 1-140 visa petitions on equal footing 

far the purpose of establishing a priority date with beneficiaries of 

approved 1-130 visa petitions who need not obtain a labor certification 

as a precondition to the filing of a petition. Nothing in the language of 

the regulation compels or, for that matter, supports a conclusion that 

the date the labor certification application is accepted for processing 

See 8 C.F.R. 245.2(a)(2), revised as of January 1, 1976. 

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becomes the filing date of a third or sixth-preference visa petition for 

the purpose of insulating an alien from the unauthorized employment 

bar of section 245(c)(2). 

Moreover, 8 C_F.R. 204.1(c)(2) must be read in conjunction with 8 

C.F.R. 204.1(c)(1) which provides: 

(1) General... Before [a third or sixth-preference visa petition] may be accepted and 

considered properly fled, the petition must be accompanied by Labor Department 

forms ... to which the certification under section 212(a)(14) of the Act has been affixed 

. (Emphasis added.) 

It is apparent from the foregoing regulation that a third or sixth 

preference visa petition is not considered properly filed until it has 

been actually submitted with the requisite labor certification. Under 

the circumstances, we must reject the contention that the beneficiary 

of a visa petition whose petition was submitted after January 10, 1977, 

qualifies for the benefits of the Service instruction as "the beneficiary 

of a visa petition filed before that date . . . ." 

Finally, that the Service instruction was not intended to encompass 

aliens who are the beneficiaries of visa petitions submitted after 

January 10, 1977, is evident from its stated purpose. The instruction 

clearly identifies the class of aliens to be benefited by its provisions, 

namely, those aliens whose adjustment applications may have been 

erroneously rejected by the Service when tendered with their visa 

petitions pursuant to the simultaneous filing provisions of the regulations. The instruction is remedial, designed to make whole a specified 

class of aliens who may have been prejudiced by the failure of the 

Service to follow its own regulations. An alien who was not the beneficiary of a visa petition actually submitted to the Service could not have 

been wronged by a refusal on the part of the Service to accept an 

adjustment application with that petition. Consequently, the purpose 

of the instruction would not be served by including such alien within 

the ambit of its provisions. 

Argument 2 

In the alternative, the respondent submits that he was fully qualified 

for adjustment of status as a nonpreference applicant upon the is 

suance of his labor certification in November of 1976, prior to the 

effective date of the section 245(c)(2) bar,' but was precluded from 

filing his adjustment application at that time by Service regulations. 

The respondent refers to 8 C.F.R. 242.17(d) which, he maintains, permits the filing of adjustment applications only before an immigration 

Section 245(c)(2) exempts from its provisions aliens who filed an application for 

adjustment of status prior to January 1, 1977, the effective date of the unauthorized 

employment bar. 

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judge on the actual date of the deportation hearing once an Order to 

Show Cause has been issued. See also 8 C.F.R. 245.2(a)(1). The respondent contends that since the Service regulations governing the filing of 

adjustment applications deprived him of a substantive right accorded 

qualified aliens by the statute, to wit, the benefits of adjustment, the 

Service should be precluded from invoking statutory ineligibility 

under secti on 245(c)(2) and his adjustment application should be considered filed nuns pro tune as of November 9, 1976. 

We find the respondent's alternate argument without merit. The 

respondent's present ineligibility for adjustment of status is a direct 

result not of the Service regulations which allegedly precluded him 

from filing-his application in November of 1976 but, instead, of his 

having engaged in unauthorized employment after January 1, 1977, 

prior to filing that application. The respondent must be presumed to 

have been put on notice of the consequences of continuing in 

unauthorized employment after January 1, 1971, by the enactment in 

October of 1976 of the 1976 Amendments.' Notwithstanding the disputed regulations, he could have eliminated section 245(e)(2) as a bar 

to adjustment either by terminating his employment prior to that date 

or by obtai ning permission from the Service to thereafter continue in 

that employment. He did not take either course of action. 

The resp ondent failed to heed the proscriptions of section 245(c)(2) 

and is not exempted therefrom by the Service instruction of July 18, 

1977. He is accordingly precluded by the unauthorized employment bar 

from adjusting his status to that of a lawful permanent resident 

pursuant to section 245. 6 

ELIGIBILITY FOR SUSPENSION OF DEPORTATION 

The remaining issue before us concerns the respondent's application 

for suspension of deportation pursuant to section 244(a)(1). The immigration judge correctly determined that the respondent has failed to 

demonstrate that his deportation would result in the requisite extreme 

hardship to himself or to a specified member of his family and, hence, 

that the statutory requirements for relief under section 244(a)(1) have 

been satisfied. See generally Matter ofAtulerso-n, 16 I&N Dec. 596 (BIA 

1978), and the cases cited therein. The appeal will accordingly be 

dismissed. 

ORDER I The appeal is dismissed. 

' 1916 Amendments to the Immigration and Nationality- Act, Pub. L. 04-511, 90 Stat. 

2703 (effective January 1, 1977). 

The respondent is not, of course, barred by reason of section 245(cX2) from applying 

to a United States consul abroad for a visa. 

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