Interim Decision #2287 

MATTER OF ORIA 

In Deportation Proceedings 

A-17860711 

A-17778971 

Decided by Board May 7, 1974 

Neither the immigration judge nor the Board of Immigration Appeals has 

jurisdiction in deportation proceedings to review a district director's decision 

not to revalidate a third preference visa petition in conjunction with an 

application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, as amended. 

CHARGE: 

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

visitor—remained longer than permitted (both respondents). 

ON BEHALF OF RESPONDENTS: Earle M. Brooks, Esquire 

189 West Madison Street 

Chicago, Illinois 60602 

The alien respondents, husband and wife, are natives and 

citizens of the Republic of the Philippines. Through counsel they 

have admitted the factual allegations contained in the Orders to 

Show Cause, and they have conceded deportability as nonimmigrant visitors who have remained beyond the authorized length of 

their stays. At their -hearing before an immigration judge they 

applied for, and were accorded, the discretionary relief of voluntary departure. The female respondent. also renewed an earlier 

application for adjustment of status under section 245 of the 

Immigration and Nationality Act. The record does not indicate 

that the male respondent formally applied for acljnatme.nt .of 

status; however, it appears that he would have so applied had the 

female respondent been granted section 245 relief. In his decision, 

dated December 4, 1973, the immigration judge denied the female 

respondent's request for adjustment of status. Both respondents 

have appealed, although the only issue on appeal involves the 

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denial of the female respondent's application under section 245. 

The appeal will be dismissed. 

The female respondent has sought adjustment of status as a 

preference immigrant under section 203(a)(3) of the Act. Her 

section 245 application was filed in January of 1969, and since that 

time sixth preference and nonpreference immigrant visas have 

remained unavailable to aliens from the Philippines. The female 

respondent had been the beneficiary of an approved third preference visa petition. Approval of that petition expired on January 19, 

1969, and the petition has not been revalidated. Her basic contention is that she should now be granted section 245 relief because a 

lengthy and unexplained delay in the processing of her case 

deprived her of an earlier opportunity for adjustment of status. 

This claim in essence relates to an apparent failure on the part of 

the Department of Labor to respond promptly to a Service request 

for a decision as to whether the female respondent's labor certification should be revalidated. 

As the case stands before us, the female respondent must either 

qualify as a third preference immigrant or be precluded from 

receiving adjustment of status. Neither the immigration judge nor 

this Board has jursidiction to review a District Director's decision 

not to revalidate a third preference visa petition. Matter of Fiatfora, 11 I. & N. Dec. 592 (BIA 1966). The female respondent does 

not now qualify as a third preference immigrant; accordingly she 

is statutorily ineligible for adjustment of status. Since we have no 

authority to determine the female respondent's eligibility for 

classification as a third preference immigrant, there would be no 

point in our assuming jurisdiction to adjudicate her claim that she 

has been prejudiced through a delay in the processing of the 

request for a revalidation of her labor certification. 

There is, however, one aspect of the female respondent's claim 

which deserves clarification. She has asserted that until February 

4, 1971 she was eligible for labor certification under Schedule C, 

Group II of 29 CFR Part 60, 1but that during the processing of her 

case the regulations were changed to eliminate a basis upon which 

she could have received labor certification. This contention is 

incorrect. 

In order to simplify the labor certification procedure, the Secretary of Labor has devised several schedules which cover certain 

occupations, and which aid in determining whether a given alien 

satisfies the requirements of section 212(aX14) of the Act. Schedule 

C, which was initially incorporated into 29 CFR Part 60 on 

February 1, 1967,2contained two groups, one of which set forth a 

1See 32 Fed. Reg. 867 (January 25, 1967). 

2 32 Fed. Reg. 867 (January 25, 1967). 

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list of occupations found to be in short supply generally, but not 

nationwide. An alien qualifying under Schedule C could receive an 

individual labor certification from the Department of Labor without the requirement of a specific job offer. Group I of Schedule C 

contained the actual list of qualifying occupations. Group II was 

not a list. It basically obviated the job offer requirement for "[a]ny 

person qualified as a professional or who has exceptional ability in 

the sciences or arts and whose occupation is not listed on Schedule 

A." 29 CFR Part 60, Schedule C (1968). 

Schedule C was revoked after due notice and the Schedule CPrecertification List was established in place of Schedule C, Group 

I. 29 CFR 60.3(c) (1970), 34 FR 1018 (January 23, 1969); Notice of 

Proposed Rule Making, 33 FR 17244 (November 21, 1968). Thereafter, the essential elements of Schedule C, Group H were no 

longer contained in any schedule, but instead were incorporated in 

29 CFR 60.3(b). 34 FR 1018 (January 23, 1969). This portion of the 

Department of Labor's regulations has not been substantially 

altered, and the basic provision, earlier embodied in Schedule C, 

Group II, has remained in effect throughout the period of time 

involved in this case. 3Consequently, the regulation under which 

the female respondent sought labor certification was not eliminated by the February 4, 1971 revision of 29 CFR Part 60, a 

revision which did eliminate the Schedule C—Precertification List. 

Although the functional provisions under which the female 

respondent sought labor certification have not been removed from 

the pertinent regulations, the delay in processing her application 

remains unexplained by the record in this case. Nevertheless, this 

is not the proper forum for a resolution of the female respondent's 

claim. 

ORDER; The appeal is dismissed. 

Futher order: Pursuant to the imigration judge's order, the 

respondents are permitted to depart from the United States 

voluntarily within 62 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 respondents 

shall be deported as provided in the immigration judge's order. 

3The Service twice requested a redetermination by the Department of Labor 

regarding the female respondent's labor certification. The initial request for 

what amounted to a revalidation determination was dated October 1, 1969 and 

alluded to Schedule C, Group II at a time when Schedule C. Group IL as such, no 

longer existed. Proper identification of the female respondent's labor certification application, however, was contained elsewhere on the form. 

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