Interim Decision #2821 

MATTER OF KHAN 

In Deportation Proceedings 

A.-21187278 

Decided by Board August 21, 1980 

(1) Where the employment of the applicant for adjustment of status under section 245 of 

the Act, 8 U.S.C. 1245, was neither authorized by the Service nor found not to have an 

adverse impact on this country's labor market, the unauthorized employment was a 

negative factor to be considered in the exercise of discretion. Matter of Arai,13 I&N 

Dec. 494 (BIA 1970), and Matter of Lars, 16 I&N Dec. 432 (BIA 1978), distinguished. 

(2) Although unauthorized employment is as adverse consideratiun, that factor alone 

should not ordinarily result in the discretionary denial of adjustment of status to 

those individuals who are statutorily eligible for that relief and who present no other 

negative considerations. 

(3) Adjustment of status should not be denied in the exercise of discretion to the 

respondent, who was certified as a member of the professions in 1976 and who 

presented no adverse considerations other than his unauthorized employment. 

CHARGE: 

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

remained longer than permitted 

ON BEHALF OP RESPONDENT: ON BEHALF OF SERVICE: 

Samuel D. Myers, Esquire George W. Masterton, Esquire 

230 West Monroe Street Appellate Trial Attorney 

Suite 2812 

Chinagr, Illinois SOUK 

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

The respondent appeals from the July 6, 1978, decision of the immigration judge finding him deportable as charged, denying his application for adjustment of status in the exercise of discretion, but 

granting him the privilege of voluntary departure. The appeal will be 

sustained and the record remanded. 

The respondent is a 30-year-old native and citizen of India, who 

entered the United States as a nonimmigrant student in September 

1974. He had entered to study mechanical engineering at the Chicago 

Technical College and was authorized to remain until September 29, 

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Interim Decision #2821 

1975. Shortly after entry, the applicant began part-time employment 

without applying for permission to work. He testified that it had 

become necessary for him to work because his mother's asthma condition worsened almost immediately after he left India and because his 

funds in India, which he had planned to use for his education, were 

necessary to support her.' The respondent successfully finished his first 

semester, but then left school because of a shortage of funds and begun 

full-time employment. He later enrolled in a masters degree program 

at Northeastern University and in January 1977 was a full-time day 

student at DePaul University. 

In July 1975, while still within the period he was authorized to 

remain as a student, the respondent applied for a labor certification as 

a member of the professions, i.e. a chemist. See 29 C.F.R. 60.3(b) (1975). 

The petition was approved in June 1976. The respondent then applied 

to the District Director for adjustment of status as a nonpreference 

immigrant. The application was denied in April 1977. An Order to 

Show Cause was issued in June 1977 charging the respondent with 

being deportable under section 241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), 

as an "overstayed" nonimmigrant. 

At the deportation hearing in August 1977. the respondent conceded 

deportability, but renewed his application for adjustment of status. 

The immigration judge found him statutorily eligible for that relief, 

but denied adjustment in the exercise of discretion because of the 

respondent's unauthorized employment. The immigration judge found 

this case distinguishable from Matter of Arai, 13 I&N Dec. 494 (BIA 

1970) and Matter ofLam,16I&N Dec. 422 (BLit 1978). He noted that the 

unauthorized employment in those cases was found not to be detrimental because labor certifications were ultimately granted for the very 

employment in question, whereas in this case the respondent was 

never granted a labor certification for the unauthorized employment 

he engaged in. The immigration judge concluded that the equities 

presented by the respondent were not sufficient to outweigh this adverse consideration. Adjustment of status was, therefore, denied in the 

exercise of discretion. 

' The record file includes an affidavit from the respondent's mother in which she 

indicates that she seriously suffered from asthma starting on October 3, 1974. She stated 

that by the time she recovered from her asthma, she was afflicted with a serious attack of 

tuberculosis. The record also includes a statement from a physician in India that he 

treated the respondent's mother for chronic bronchial asthma starting in "about" 

October 1974 and a certificate from the director of a tuberculosis clinic that she had been 

undergoing treatment since September 12, 1975. The respondent's mother indicated that 

her medical expenses precluded her from sending her son money for his education. 

Although the immigration judge questioned whether the respondent's mother's illness 

was the reason he began working, the nature and circumstances of the mother's illnesses 

were not placed in doubt. 
Interim Decision #2821 

The respondent appeals from the denial of adjustment of status. 

Through counsel, he submits that unauthorized employment should 

not of itself lead to a discretionary denial of adjustment of status to a 

respondent who is statutorily eligible for such relief. It is submitted 

that Matter of Arai, supra, and Matter of Lam, supra, are controlling 

here, that the immigration judge erroneously failed to give any weight 

to the favorable fact that the respondent had an approved labor 

certification as a professional, and that relief should have been granted 

in the exercise of discretion. Counsel submits that unauthorized employment should not alone be determinative of the discretion issue 

because "of the common knowledge that almost every applicant for 

permanent residence has worked without permission." 

We agree with the immigration judge that the facts here are distinguishable from those in Matter of Arai, supra, and Matter of Lam, 

supra. In both Arai and Lam, the respondents, who had worked 

without permission, were ultimately certified by the Department of 

Labor for the very employment they had previously engaged in. Thus, 

the Department of Labor found that their employment was not of a 

nature to have any adverse impact on the American labor market. 

Their employment in fact was necessary to the employer who applied 

for the labor certification on their behalf. Under these circumstances, 

we found that the unauthorized employment should not be deemed an 

adverse factor in determining whether adjustment of status was warranted in the exercise of discretion. 

In this case, as noted by the immigration judge, the respondent's 

employnient was neither authorized by the Service nor found not to 

have had an adverse impact on this country's labor market. Under 

these circumstances, unauthorized employment is a negative consideration to be weighed in the exercise of discretion. 

This conclusion, however, is not dispositive of the case before us. 

Although unauthorized employment of the type at issue here is an 

adverse factor, we find that this factor alone should not ordinarily 

result in the discretionary denial of adjustment of status to those 

individuals who are statutorily eligible for that relief and who present 

no other negative considerations' 

In this regard, we note that as of January 1, 1977, section 245(c) of 

the Act has expressly precluded certain aliens from adjusting their 

status if they engaged in unauthorized employment. This statutory 

The nature and circumstances of an individual's unauthorized employment, however, 

may in certain cases be such•as to alone warrant a discretionary denial of relief absent a 

. showing of significant countervailing equities (e.g., where it is clear that the employment 

had a significant adverse impact on the labor market or where the timing of the 

employment cast doubts on the individual's true intentions at the time of entry as a 

nonimmigrant). 

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Interim Decision 112821 

preclusion does not apply to those individuals whose only unauthorized 

employment occurred prior to January 1, 1977, or who engaged in 

unauthorized employment after filing their adjustment application, or 

who qualify as "immediate relatives" of United States citizens. We 

decline to adopt a rule regarding the exercise of discretion which could 

in effect expand this statutory bar beyond the limits set by Congress 

and prevent adjustment of status to all aliens who engaged in 

unauthorized employment. Accordingly, we conclude that if an individual is not within the scope of the section 245(c)(2) bar and if his or 

her unauthorized employment is the only adverse matter of record, 

adjustment of status should not ordinarily be denied in the exercise of 

discretion. 

In the present case, the respondent was denied adjustment of status 

because the immigration judge did not find sufficient countervailing 

equities to offset the adverse impact of the respondent's unauthorized 

employment' There were no other adverse matters identified. It was 

not concluded that the respondent had entered with a preconceived 

intent to remain permanently or that he had engaged in any fraud or 

misrepresentation in connection with his application for his student 

visa. He had no prior immigration violations nor any criminal record. 

His certification as a professional chemist in 1976 indicated that he 

could be a "definite boon to the American culture and workforce." See 

Matter of Stamatiades, 11 I&N Dec. 643, 645 (D.D. 1966). 

Under these circumstances, we find that the respondent should not 

be denied adjustment of status in the exercise of discretion. The appeal 

will accordingly be sustained. The record will be remanded for further 

processing of the respondent's application for adjustment of status 

and for the entry of an order not inconsistent with the foregoing 

decision. 

ORDER? The order of the immigration judge is vacated and the 

record is remanded for further proceedings consistent with this 

decision. 

' This case is not controlled by section 245(c)(2). Both the employment in question here 

and the filing of the adjustment application by the respondent occurred prior to January 

1, 1977.