i16CE1111 JJtUblUll if G00.1. 

MATTER OF WANG 

In Deportation Proceedings 

A-20549207 

Decided by Board May 24, 1978 

An alien, who has applied for adjustment of status as a nonpreference immigrant, cannot 

establish exemptionfrom the labor certification requirements of section 212(a)(14) of the 

Act as an alien who does not intend to enter the labor market, when her sole source of 

income is $000 a month which her husband in Hong Kong sends to her under a Hong 

Kong legal separation agreement. 

CHARGE: 

Order: Act of 1952--Section 241(a)(2) [8 U.S.C. 1201(a)(2))—Nonimmigrant visitor- 

• remained longer 

ON BEHALF OF RESPONDENT: John F. Sheffield, Esquire 

442 Pacific Mutual Building 

523 West Sixth Street 

Los Angeles, California 90014 

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

In a decision dated June 7, 1976, an immigration judge found the 

respondent deportable under section 241(a)(2) of the Immigration and 

Rationality Act, 8 U.S.C. 1251(a)(2), as a. nonimmigrant visitor for 

pleasure who remained longer than authorized, ordered her deported, 

but granted her the privilege of voluntary departure in lieu of deportation. He also denied the respondent's application for adjustment of 

status under section 245 of the Act, 8 U.S.C. 1255. The respondent has 

appealed from that denial. The appeal will be dismissed. 

• The respondent, a 38-year-old native and citizen of China, last entered the United States, with her 14 year-old daughter, as a nonimmigrant visitor for pleasure on August 14, 1973. She did not depart as 

required. At the deportation hearing, the respondent admitted that the 

allegations of fact in the Order to Show Cause were true and conceded 

that she was deportable as charged. We, therefore, agree with the 

immigration judge that deportability as charged has been established by 

clear, convincing, and unequivocal evidence. The only issue remaining on 

appeal is the immigration judge's denial of the respondent's application to 

adjust her status to that of a lawful permanent resident. 

528 
interim Decision , eztfoi. 

The respondent first applied for adjustment of status with the District 

Director on May 29, 1974. At that time, she applied for a nonpreference 

immigrant visa. She claimed that she was exempt from the labor certification requirement of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14), 

because she did not intend to enter the labor market. She stated that 

her living expenses were provided by her husband who sent her money 

each month from Hong Kong for her support. The District Director 

denied her application, finding that she did not have sufficient income to 

support herself and her daughter without the income derived from her 

husband's employment in Hong Kong, and that if he exempted her on 

the basis of income supplied from her husband's employment, he would 

also be granting her husband an exemption from the labor certification 

requirement since he would then be eligible to enter the United States 

as a second-preference spouse of a lawful permanent resident, exempt 

from the labor crtification requirements. The District Director denied 

the application in the exercise of discretion on the basis that the respondent's application wa part of an attempt to circumvent the requirement 

of section 212(a)(14) of the Act. 

The District Director certified the record and his decision to the 

Regional Commissioner of the Immigration and Naturalization Service, 

Southwest Region, for review. The Regional Commissioner in his decision, Matter of Wang, Interim Decision 2404 (R.C. 1975), found that 

there was nothing in the record to contradict the District Director's 

finding that the respondent was attempting to evade the labor certification requirement of the Act. He agreed that the respondent-was dependent on income which her husband earned, and, stated that, since, there 

was no indication that her marriage was not viable, it followed that her 

husband would probably come to the United States to join her and their 

daughter, as soon as the respondent became a lawful permanent resident. He, therefore, agreed that her application for adjustment of 

status should be denied. 

The respondent reapplied for adjustment of status before the immigration judge in deportation proceedings on April 1, 1976. She again 

claimed to be a nonpreference immigrant exempt from the labor certification requirements of section 212(a)(14) of the Act. She again stated 

that her husband provided her support and that she did not intend to 

work in this country. By the time of the deportation hearing, the 

respondent had procured a legal separation from her husband in Hong 

Kong under which he was required to pay her support in the amount of 

$600 a month. 

The respondent testified at the hearing that she now intended to 

remain in the United States permanently since she did not see any 

possibility of a reconciliation with her husband in Hong Kong. Despite 

this testimony, the immigration judge also found that the respondent 

529 
Interim Decision #2651 

and her husband were attempting to evade the labor certification requirements of section 212(a)(14) of the Act. The immigration judge 

stated that he did not find credible the respondent's statement that she 

had no intention of seeing her husband again. He found that, since the 

respondent had admitted that she was dependent on her husband for 

support and because there is no guarantee that he will continue sending 

support payments, the respondent was statutorily ineligible for adjustment• of status under section 212(a)(14) of the Act. 

The immigration judge also found that the respondent's application 

fur adjustment of status should be denied in the exercise of discretion 

because he believed that she had entered the United States in 1972 with 

a preconceived intent to remain permanently and there were no outstanding favorable equities to outweigh this adverse factor. See Matter 

of Blas, Interim Decision 2485 (BIA 1974; A.G. 1976); Matter of Arai , 13 

I. & N. Dec. 494 (BIA 1970). 

On appeal, the respondent claims that the immigration judge incorrectly found both' that she was ineligible for adjustment of status, and 

that the requested relief should be denied in the exercise of discretion. 

The respondent also argues that the immigration judge should not have 

considered her husband's finantial 1.vurth in these proceedings since he is 

not a party in the present deportation proceedings. She stated that 

although the evidence submitted should be sufficient to establish that 

her husband is a wealthy man, no attempt was made to show his entire 

financial worth, since she was merely attempting to establish her husband's ability to continue to support her. The respondent also argues 

that her husband's future plans and intentions are irrelevant to the 

present proceedings. She claims that whether once she is granted adjustment of status, she then applies for preference status for her husband, should not be an issue since the Act provides for just such an 

application. 

Although the respondent does state that she has income in the amount 

of approximately $100 a month in interest from money she has invested 

in this country, the bulk of her income comes from her husband in Hong 

Kong. It is clear that if she were not receiving the money every month 

from her husband, she would not be able to pay her living expenses 

without taking some kind of job. The $600 a month which she receives 

from her husband is the amount specified in a legal separation agreement which she obtained from her husband after the Regional Commissioner had affirmed the District Director's denial of her application for 

adjustment of status. However, there is no assurance either that this 

separation agreement will stay in effect for any specified period of time, 

or that her husband will continue to abide by the terms of the agreement. If her husband did refuse to continue to pay her support, it would 

be quite difficult for her to enforce the agreement in Hong Kong while 

530 
Interim Decision #2651 

residing in this country. Since it is clear that this support from her 

husband is essential to the respondent's ability to live in this country 

without working, if she were to stop receiving this support she would be 

forced to enter the labor market. We, therefore, find that the respondent has not established that she is exempt from the labor certification 

requirements of section 212(a)(14) of the Act on the basis of income from 

a source in another country, when that income -may stop at any time. 

Moreover, an unsecured assurance of support by a nonresident relative 

does not even measure up to the normal requirement for satisfying this 

Government that an alien is not likely at any time to become a public 

charge. Foreign Affairs Manual, Part III, Vol. 9, 22 C.F.R. 42.91(a)(15), 

Note 1.2(c). It takes the combination of respondent's husband's promised 

remittances and her employability to overcome this ground. 

Since the respondent is applying for adjustment of status as a nonpreference immigrant and she has not shown that she is exempt from 

the labor certification requirements of section 212(a)(14) of the . Act, she 

is statutorily ineligible for relief under section 245 of the Act. Accordingly, her appeal will be dismissed. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: The respondent is granted the privilege of 

voluntary departure without expense to the Government within 30 days 

from the date of this order, or any extension beyond that time as may be 

granted by the District Director; and in the event of failure so to depart, 

the respondent shall be deported as provided in the immigration judge's 

order. 

531